United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, District Judge.
This matter comes before the court on the pro se petition of Kenneth Eugene Fox, Sr. 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). Fox 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, Kenneth Fox, is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. On September 2, 2009, Fox entered a guilty plea to two counts of aggravated assault and one count of leaving the scene of an accident in the Circuit Court of Desoto County, Mississippi. On October 16, 2009, for the first count of aggravated assault, Fox was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections ("MDOC"). At the same time, on the second count of aggravated assault, Fox was sentenced to twenty years of post-release supervision, five years reporting and fifteen nonreporting, to run consecutively to the sentences for the other two counts. In addition, for leaving the scene of an accident, Fox was sentenced to serve five years in prison, to be served concurrently with the sentence for the first count of aggravated assault.
On April 4, 2011, Fox filed a "Motion for Post Conviction Relief, " signed on March 25, 2011, in the Desoto County Circuit Court. On January 26, 2012, the circuit court denied the motion. Fox appealed the denial to the Mississippi Supreme Court. On April 30, 2013, the Mississippi Court of Appeals affirmed the judgment of the circuit court. See Fox v. State, 129 So.3d 208 (Miss.Ct.App. 2013) reh'g denied, Sept. 17, 2013; cert. denied, Jan. 30, 2014 (Case No. 2012-CP-00238-COA). Fox filed the instant petition for a writ of habeas corpus on March 14, 2014. The State moved to dismiss the petition on November 12, 2014. In response, on December 1, 2014, Fox filed a "Motion to Strike" the State's motion to dismiss under Miss. R. Civ. P. 12(f)(2). In that motion, Fox presents several arguments in favor of statutory and equitable tolling of the federal statute of limitations, thus rendering his petition timely filed. As set forth below, however, the arguments are unavailing, and the instant petition for a writ of habeas corpus will be dismissed as untimely filed.
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 the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...