United States District Court, N.D. Mississippi, Greenville Division
MICHAEL P. MILLS, District Judge.
This matter comes before the court on the pro se petition of Lenzy Louis Hodgin for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as untimely filed under 28 U.S.C. § 2244(d)(2). Hodgin has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the instant petition for a writ of habeas corpus dismissed as untimely filed.
Facts and Procedural Posture
The petitioner, Lenzy Louis Hodgin, is in the custody of the Mississippi Department of Corrections and is currently housed at the George/Greene County Correctional Facility in Lucedale, Mississippi. Hodgin was convicted of one count of fondling and one count of sexual battery in the Circuit Court of Sunflower County, Mississippi. On August 6, 2004, the trial court found that Hodgin had been previously convicted of a sex crime, and sentenced him to serve twenty years for fondling and twenty years for sexual battery in the custody of the Mississippi Department of Corrections ("MDOC"). The judge also ordered that the sentences be served consecutively without eligibility for parole. Hodgin appealed his sentences and convictions to the Mississippi Supreme Court. On July 26, 2007, the Mississippi Supreme Court affirmed the judgment of the lower court. Hodgin v. State, 964 So.2d 492 (Miss. 2007) reh'g denied, Jan. 17, 2008 (No. 2004-KA-02039-SCT). Hodgin did not file a petition for writ of certiorari to the United States Supreme Court.
On May 20, 2009, the petitioner filed what he titled an "Application for Leave to Proceed in the Trial Court" in the Mississippi Supreme Court. However, the Mississippi Supreme Court issued an order on July 1, 2009, construing the motion as a petition for writ of mandamus - and dismissed the petition as premature. On July 19, 2010, Hodgin filed an "Application for Leave to Proceed in the Trial Court" in the Mississippi Supreme Court. The Mississippi Supreme Court held on August 4, 2010, that the application should be denied.
On September 7, 2012, Hodgin filed another "Application for Leave to Proceed in the Trial Court" in the Mississippi Supreme Court. On October 31, 2012, the Mississippi Supreme Court dismissed the application as procedurally barred because it was filed outside the state statute of limitations set forth in Miss. Code Ann. § 99-39-5(2) and met none of its exceptions. (Case No. 2009-M-00808).
On January 24, 2012, Hodgin filed yet another "Application For Leave To File Motion For Post-Conviction Collateral Relief" in the Mississippi Supreme Court. On March 6, 2012, the court dismissed the application, holding that it was barred as a successive writ. Hodgin filed a motion for rehearing which was dismissed, as reconsideration is prohibited by Miss. R. App. P. 27. On June 19, 2012, the court filed a corrected order holding that not only was the application successive, but it was also time barred and without merit. Further, the Mississippi Supreme Court held that the filing of additional frivolous petitions will subject Hodgin to sanctions.
One-Year Limitations Period
Decision in this case is governed by 28 U.S.C. § 2244(d), 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 ...