United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
LINDA R. ANDERSON, Magistrate Judge.
This cause is before the undersigned for a report and recommendation as to the Motion to Dismiss  filed by Defendant. Plaintiff, a state prisoner in the custody of the Mississippi Department of Corrections, has also filed Motions to Amend [10, 22] his Petition for Writ of Habeas Corpus. The undersigned has considered the proposed amendments in reaching a conclusion with respect to the motion to dismiss. Having considered the record in this matter, the undersigned recommends that the motion to dismiss be granted and the petition be dismissed.
FACTS AND PROCEDURAL HISTORY
On September 10, 1997, pursuant to a guilty plea in the Circuit Court of Warren County, Mississippi, Plaintiff was sentenced to serve a term of six (6) years on a charge of kidnaping a child under the age of ten (10), and to a term of thirty (30) years without parole pursuant to Miss. Code Ann. §47-5-139 on a charge of sexual battery, with the sentences to run consecutively. By the instant petition, Plaintiff is not challenging his plea and sentences. Instead, Plaintiff challenges his sentence computation. Plaintiff claims that Defendant unlawfully took away 2, 950 days earned credit against his time to serve. Plaintiff seeks reinstatement of that time, as well as earned time credits for the duration of his imprisonment to date, which would make him eligible for release. .
Plaintiff argues that he was awarded the 2, 950 days of credit against his sentence, but in 2004, the Mississippi Department of Corrections ("MDOC") removed that earned time from his time sheet. The Mississippi Court of Appeals described the basis for Plaintiff's claim as follows:
While serving his sentence, Culbert performed several jobs, including working at Mississippi Prison Industries and working as a "trusty, " that credited him with earned time. This earned time accrued, eventually giving him credit for almost eight years, which would reduce his sentence to twenty-eight years and two months. However, MDOC removed the earned time from Culbert's sentence.
Culbert v. Epps, 120 So.3d 983, 984 (Miss. Ct. App. Dec. 4, 2012), cert. denied, Sept. 5, 2013. Defendant argues, contrary to Plaintiff's assertion that time he earned was wrongfully taken, that on September 9, 2004, MDOC merely recalculated Plaintiff's time, discovered he had been earning time in error and corrected the error. Defendant also argues that Plaintiff knew he was not earning time as of September 9, 2004, and therefore, the one year statute of limitations for filing the petition expired on September 9, 2005. Plaintiff did not sign the instant petition until August 6, 2014.
PLAINTIFF'S REQUEST FOR HEARING
Plaintiff has requested an evidentiary hearing with respect to the instant petition. . However, as Defendant correctly argues, a hearing is not warranted in this case. The circumstances under which this Court may grant an evidentiary hearing on a habeas petition are set out in 28 U.S.C. § 2254(e)(2):
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found ...