United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
NEAL B. BIGGERS, Jr., District Judge.
This matter comes before the Court on the pro se petition of Byron Greene for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved to dismiss the petition as timebarred pursuant to 28 U.S.C. § 2244, or, alternatively, as unexhausted. For the reasons set forth below, Respondents' motion is granted, and the instant petition will be dismissed with prejudice.
Facts and Procedural History
Byron Greene pleaded guilty to two counts of uttering a forgery in the Circuit Court of Union County, Mississippi, and was sentenced by order filed December 12, 2011, to serve a term of five years on each count, reduced to time served. (Respts' Mot., Exs. A and B). Greene's sentences were suspended, and he was ordered to be placed under the post-release supervision of the Mississippi Department of Corrections for a period of five years. ( Id., Ex. B). Greene did not appeal his sentence or seek post-conviction relief in the State courts. His federal habeas petition was stamped "filed" with the Court on August 20, 2013.
On July 30, 2014, Respondents filed a motion to dismiss the instant action, arguing that the petition is untimely, and that Greene otherwise failed to exhaust his claims prior to seeking federal habeas relief. Greene did not file a timely response to Respondents' motion.
The instant petition for writ of habeas corpus is subject to the statute of limitations of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Egerton v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The issue of whether Respondents' motion should be granted turns on the statue's limitation period, which provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or the laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The federal limitations period is tolled while a "properly filed application for State post-conviction or other collateral review" is pending. See 28 U.S.C. § 2244(d)(2). In "rare and exceptional circumstances, " the limitations period may be equitably tolled. ...