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Vanwey v. Epps

United States District Court, N.D. Mississippi, Aberdeen Division

February 3, 2015

ALISHA VANWEY, Petitioner,
v.
CHRISTOPHER EPPS, ET AL., Respondents.

MEMORANDUM OPINION

MICHAEL P. MILLS, District Judge.

This matter comes before the court on the pro se petition of Alisha Vanwey 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). Vanwey has not responded, and the deadline to do so has expired. 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

On May 29, 2007, Alisha Vanwey entered a plea of guilty to three counts of sale of hydrocodone within 1, 500 feet of a park, as a habitual offender under Miss. Code Ann. 99-19-81, in Cause No. 2007-325 in the Circuit Court of DeSoto County, Mississippi. On October 2, 2007, under this plea, Vanwey was sentenced to serve a term of eleven years on each count as a habitual offender, to run concurrently with each other.[1] The sentencing order is dated September17, 2007; however, it is stamped as filed in the DeSoto County Circuit Court Clerk's Office on October 2, 2007. The court will give the petitioner the benefit of the doubt by using the later date in its timeliness calculation.

On March 12, 2008, Vanwey, through counsel, filed a "Petition for Post-Conviction Relief" in DeSoto County Circuit Court Cause No. CR2007-325-C(D). On May 9, 2008, the circuit court dismissed Vanwey's petition without prejudice for failure to comply with the requirements of Miss. Code Ann. §99-39-9(1) and § 99-39-9(3). On August 6, 2008, Vanwey's attorney filed another "Petition for Post Conviction Relief, " docketed in DeSoto County Circuit Court Cause No. CV2008-258, challenging her pleas and sentences in Cause No. CR2007-325. On August 26, 2009, this motion was denied. Vanwey appealed this decision and, on March 1, 2011, the Mississippi Court of Appeals affirmed the circuit court's decision. Vanwey v. State, 55 So.3d 1133 (Miss.Ct.App. 2011) (Cause No. 2009-CA-01544-COA and 2009-CA-01546-COA). On March 22, 2011, the appellate court's mandate was issued.

Vanwey later filed a pro se "Motion for Post Conviction Collateral Relief" in DeSoto County Circuit Court Cause No. CV2011-326RCD, which she signed on September 13, 2011. This motion was dismissed with prejudice by the circuit court on January 5, 2012. Vanwey appealed this decision, and the Mississippi Court of Appeals affirmed. Vanwey v. State, 2013 WL 4055366 (Miss.Ct.App. 2013), reh'g. denied November 19, 2013 (Cause No. 2012-CP-00668-COA). Vanwey then filed another pro se "Motion for Post Conviction Collateral Relief Pursuant to Intervening Decision by United States Supreme Court" in DeSoto County Circuit Court Cause No. CV2012-345GCD, signed on October 29, 2012. The circuit court dismissed this motion on April 30, 2013. The Mississippi Court of Appeals affirmed the dismissal. Vanwey v. State, 147 So.3d 367 (Miss.Ct.App. 2014), reh'g. denied September 16, 2014 (Cause No. 2013-CP-00818-COA).

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 ...

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