United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER, Magistrate Judge.
THIS MATTER is before the Court on the Petition of Stacy Jerome Hicks for Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss  pursuant to 28 U.S.C. § 2244(d). Having considered the Motion, the documents made a part of the record, and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss  be granted and the Petition  be dismissed with prejudice.
On February 26, 2007, Petitioner was convicted of aggravated domestic violence in the Circuit Court of Clarke County, Mississippi. On March 30, 2007, Petitioner was sentenced as an habitual offender to serve a term of life in the custody of the Mississippi Department of Corrections. ([12-1].) Petitioner appealed his conviction and sentence to the Mississippi Supreme Court, which assigned the case to the Mississippi Court of Appeals. On August 12, 2008, the court of appeals, in a written opinion, affirmed the trial court's judgment. See Hicks v. State, 6 So.3d 1099 (Miss. App. 2008). On April 16, 2009, the Mississippi Supreme Court denied Petitioner's petition for writ of certiorari. Based on a review of the record and a review of the United States Supreme Court's automated docket system,  Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.
On June 9, 2010, Petitioner filed an application for leave to file a motion for postconviction collateral relief in the Mississippi Supreme Court. ([12-3].) On September 9, 2010, the Supreme Court denied the application. ([12-4].) On December 20, 2013, Petitioner filed the instant Petition for Writ of Habeas Corpus . Thereafter, Respondent filed his Motion to Dismiss , asserting that the Petition was not timely filed and should be dismissed.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") specifies that a petitioner seeking federal habeas relief must file a federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003). The Fifth Circuit clarified the law for purposes of determining when a state conviction becomes final pursuant to Section 2244(d)(1)(A) by holding that:
The language of § 2244(d)(1)(A) provides that a decision becomes final by the conclusion of direct review or the expiration of the time for seeking such review. We previously held that direct review includes a petition for writ of certiorari to the Supreme Court. Therefore, the conclusion of direct review is when the Supreme Court either rejects the petition for certiorari or rules on its merits. If the conviction does not become final by the conclusion of direct review, it becomes final by the expiration of the time for seeking such review. We previously held that this includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort. If the defendant stops the appeal process before that point, the conviction becomes final when the time for seeking further direct review in the state court expires.
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).
On April 16, 2009, the Mississippi Supreme Court denied Petitioner's petition for writ of certiorari. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Accordingly, Petitioner's judgment became final-and the statute of limitations for habeas relief began to run-on July 15, 2009 (April 16, 2009, plus 90 days). Petitioner was required to file his federal habeas petition by July 15, 2010, unless he was entitled to statutory and/or equitable tolling. 28 U.S.C. § 2244(d)(1)(A). Petitioner filed his petition on December 20, 2013, more than four years after his judgment became final.
Whether statutory tolling occurred during the period between the judgment becoming final on July 15, 2009, and Petitioner filing his federal Petition on December 20, 2013, is determined by reference to 28 U.S.C. § 2244(d)(2), which provides for tolling of the one-year limitation period during the time in "which a properly filed application for State post-conviction or collateral review" remains pending. As previously stated, Petitioner signed an application regarding post-conviction collateral relief on May 26, 2010, and filed it in state court on June 9, 2010. ([12-3].) The application was denied on September 9, 2010. ([12-4].) As a result, the limitation period was tolled, at most, for 106 days (May 26, 2010, to September 9, 2010). Petitioner was required to file his federal habeas petition by October 29, 2010 (July 15, 2010, plus 106 days), absent equitable tolling.
The decision to apply the equitable tolling doctrine to the one-year limitation period set forth in Section 2244(d) rests within the sound discretion of the district court. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Generally, equitable tolling is appropriate only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Equitable tolling "applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Ott v. Johnson, 184 F.3d 510, 513 (5th Cir. 1999). Additionally, in order to establish that he is entitled to equitable tolling, Petitioner must demonstrate "that he has been pursuing his rights diligently...." Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012). Courts should "examine each case on its facts to determine whether it presents sufficiently rare and exceptional circumstances' to justify equitable tolling." ...