United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK, District Judge.
This matter comes before the Court on the pro se petition of Manuel Cooper, Mississippi prisoner # 91229, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondents have moved to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d), and Petitioner has responded to the motion. For the reasons set forth below, Respondents' motion will be granted, and the instant petition will be dismissed with prejudice.
Facts and Procedural History
Petitioner, Manuel Cooper, was convicted of one count of false pretense in the Circuit Court of DeSoto County, Mississippi, and was sentenced on June 2, 2009, as an habitual offender to serve life in the custody of the Mississippi Department of Corrections ("MDOC"). (ECF No. 1, p. 1; Respts' Mot. to Dismiss, Ex. A). Petitioner appealed his conviction and sentence, and the matter was assigned to the Mississippi Court of Appeals, which affirmed the judgment of the lower court in an opinion entered on April 26, 2011. Cooper v. State, 68 So.3d 741 (Miss. Ct. App. 2011), reh'g denied, June 28, 2011, cert. denied, August 25, 2011 (No. 2009-KA-00924-COA); (Respts' Mot. to Dismiss, Ex. B). Petitioner did not file a petition for writ of certiorari to the United States Supreme Court.
On September 15, 2011, Petitioner filed in the Mississippi Supreme Court a "Motion for Leave to Proceed in the Trial Court." (Respts' Mot. to Dismiss, Ex. C). By order filed September 28, 2011, the trial court dismissed the motion without prejudice, finding that Petitioner failed to attach to it a Motion for Post-Conviction Relief. ( Id., Ex. D). Petitioner did not resubmit his motion with the motion for post-conviction relief attached. Rather, on February 18, 2014, Petitioner filed with the Mississippi Supreme Court an "Application for Leave to Proceed to the DeSoto County Circuit Court." ( Id., Ex. E). On May 14, 2014, the court denied the motion, holding that the issues raised therein were barred and without merit. ( Id., Ex. F). Petitioner filed for rehearing from the decision on May 27, 2014, but the petition was denied on June 17, 2014, pursuant to Mississippi Rule of Appellate Procedure 27(h). ( Id., Ex. G).
Petitioner signed the instant petition on May 1, 2014, and it was stamped "filed" in this Court on June 2, 2014. (ECF No. 1, pp. 1, 14). On August 27, 2014, Respondents filed a motion to dismiss the instant action, arguing that the petition is untimely under 28 U.S.C. § 2244(d). Petitioner concedes that the petition was filed after the expiration of the statute of limitations, but he maintains that his family retained an attorney who was supposed to file his post-conviction action before November 14, 2011. He argues that his post-conviction attorney, therefore, is responsible for the delay. Attached to the instant petition is a letter from post-conviction counsel to Petitioner dated November 14, 2011, in which Petitioner is informed that counsel has been retained by Petitioner's family to "look into an appeal of your conviction." (ECF No. 1, p. 17). Petitioner alleges that counsel failed to file the post-conviction action as promised, and he argues that the limitations period should be tolled for counsel's ineffectiveness.
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. ...