United States District Court, S.D. Mississippi, Eastern Division
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE, ETC.
KEITH STARRET, District Judge.
This cause is before the Court on Petition of Charles Anderson for Writ of Habeas Corpus  filed pursuant to 28 U.S.C. §2254 and respondent's Motion to Dismiss  filed pursuant to 28 U.S.C. §2244(d). Magistrate Judge Michael T. Parker has filed a Report and Recommendation  which has been objected to by the petitioner . The Court has considered the above documents and the record herein and finds as follows:
1. PROCEDURAL HISTORY
Petitioner was convicted of one count of arson in the Circuit Court of Lamar County, Mississippi. On May 12, 2009, Petitioner was sentenced to serve twenty (20) years in the custody the Mississippi Department of Corrections ("MDOC"). (Motion  Ex.A.) Petitioner appealed his conviction and sentence to the Mississippi Supreme Court. On December 7, 2010, the Mississippi Court of Appeals confirmed the Circuit Court's ruling. (Motion  Ex.C; see Anderson v. State, 50 So.3d 1015 (Miss.Ct.App. 2010)). Petitioner filed motions in the Court of Appeals for extensions of time to petition for rehearing, and the Court granted an extension until January 21, 2011. (Motion  Ex.A.]). Petitioner, however, did not file a petition for a rehearing.
On February 27, 2012, he sought leave from the Mississippi Supreme Court to proceed in the trial court for post-conviction relief. (Motion  Ex. F) On April 11, 2012, The Mississippi Supreme Court denied his application, because the claims were barred by res judicata under Miss. Code Ann. § 99-39-21(3), and Petitioner could not show a denial of a state or federal right. (Motion  Ex. G). On February 22, 2013, Petitioner again requested leave to proceed in the trial court for post-conviction relief, but the request was dismissed as a successive writ on May 15, 2013. (Motion  Ex. H & I)
On July 11, 2013, Petitioner filed his Petition for Writ of Habeas Corpus  in this Court. In the Motion to Dismiss , Respondent contends that the Petition  was untimely filed and, therefore, should be dismissed under 28 U.S.C. § 2244(d). Petitioner responded, claiming he is actually innocent and has newly discovered evidence to show his innocence. (Response ).
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). See also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is "entitled to a de novo review by an Article III Judge as to those issues to which an objection is made.") Such review means that this Court will examine the entire record and will make an independent assessment of the law. The Court is not required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
III. PETITIONER'S OBJECTIONS AND ANALYSIS
The basis for the dismissal recommended by Judge Parker is that the Petition was filed one year, five months and 18 days after the Judgment became final. 28 U.S.C. §2244(d)(1)(A) requires that the habeas petition be filed within one year. Accordingly, the Petition is filed out of time unless there is a right to equitable tolling. Judge Parker went through an analysis of equitable tolling and found that the petitioner had not set forth a basis that would constitute "rare and exceptional circumstances" that would justify equitable tolling. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Petitioner bears the burden of demonstrating the existence of rare and exceptional circumstances that would warrant equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). In his response petitioner claims that he is actually innocent which, if true, would overcome the procedural bar of the Statute of Limitations. If new evidence has come to light which if considered by a jury and that no reasonable jury could have voted to find petitioner guilty beyond a reasonable doubt, then the procedural bar will be overcome. However, in his initial pleadings the petitioner only restated his arguments in the state court and alleges new evidence. It is clear from the Objection that the petitioner is referring to evidence that was adduced at trial. This cannot be newly discovered evidence. If the evidence was known at the time of the trial then it cannot be newly discovered.
The petitioner states that there were false statements made in the testimony and that logically it should prove his innocence. The first hurdle, however, is to establish that this is newly discovered evidence which the petitioner cannot do. The Court finds that the Objections  proposed by the petitioner are not well taken and that the Report and Recommendation should be adopted as the Order of this Court and that the Petition should be dismissed.
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of the entire record and a de novo review of the matters raised by the objections. For the reasons set forth above, this Court concludes that Anderson's objections lack merit and should be overruled. The Court further concludes that the proposed Report and Recommendation is an accurate statement of the facts and the correct analysis of the law in all regards. Therefore, the Court accepts, approves and adopts the Magistrate Judges's factual findings and legal conclusions contained in the Report and Recommendation. Accordingly, it is ordered that the United States Magistrate Judge Michael T. Parker's ...