United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
GLEN H. DAVIDSON, Senior District Judge.
This matter comes before the Court on the pro se petition of Johnny Washington for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his 1977 conviction for capital murder and 1983 sentence of life imprisonment. Respondents have moved to dismiss the petition as successive, and, alternatively, as untimely. Washington has responded to the motion to dismiss. This matter is now ripe for resolution. For the reasons set forth below, Respondents' motion is granted, and the instant petition is dismissed.
In May 1977, a Lowndes County Circuit Court jury convicted Washington of capital murder and sentenced him to death. Mot. to Dismiss, Ex. A. His conviction and sentence were affirmed by the Mississippi Supreme Court on July 12, 1978. Washington v. State, 361 So.2d 61 (Miss. 1978); Mot. to Dismiss, Ex. B. In September 1981, the United States Court of Appeals for the Fifth Circuit reversed Washington's death sentence and remanded the case for resentencing. Washington v. Watkins, 655 F.2d 1346 (5th Cir. 1981); Mot. to Dismiss, Exs. C and D. Thereafter, Washington moved the trial court to permit him to waive a jury trial, and on February 25, 1983, the circuit judge resentenced Washington to life imprisonment in the custody of the Mississippi Department of Corrections. Mot. to Dismiss, Exs. E and F.
Washington has previously filed for federal habeas relief in this Court in Cause No. GC-79-93-WK-P, challenging his 1977 Lowndes County conviction and sentence for capital murder. This earlier habeas action was the subject of the Fifth Circuit appeal in Washington v. Watkins, supra . In that case, the Fifth Circuit remanded the matter on the issue of sentencing only, and the district court thereafter ordered the trial court to enter a new sentence in accordance with State law. Therefore, the Court finds that the instant petition is successive as it pertains to Washington's capital murder conviction.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires that an applicant seeking to file a second or successive petition first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Washington has not obtained the requisite authorization to file a successive action challenging his capital murder conviction from the Lowndes County Circuit Court. Accordingly, to the extent that Washington's petition challenges his underlying conviction for capital murder, the instant petition must be dismissed, as the Court is without jurisdiction to review the matter.
However, to the extent that Washington is not challenging his 1977 conviction, but rather, his 1983 resentencing only, whether Respondents' motion should be granted turns on the timeliness of Washington's § 2254 petition. The AEDPA has a one-year statute of limitations, which provides:
(d)(1) A I-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 lilting 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" ...