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Birkhead v. King

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

February 4, 2015

RICHARD BIRKHEAD, Petitioner,
v.
RONALD W. KING, ET AL., Respondents.

MEMORANDUM OPINION

DEBRA M. BROWN, District Judge.

This matter comes before the Court on the pro se petition of Richard Birkhead 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). Although Birkhead requested additional time to respond to the motion, he has not done so, and the deadline for response has expired. The matter is ripe for resolution. For the reasons below, the Court grants the State's motion and dismisses the instant petition for a writ of habeas corpus as untimely filed.

I

Procedural History

On March 8, 2007, Birkhead was convicted of capital murder in the Circuit of Washington County, Mississippi, and was sentenced to a term of life without parole as a habitual offender. On February 19, 2009, the Mississippi Supreme Court affirmed Birkhead's conviction and sentence. However, the Mississippi Supreme Court granted an en banc rehearing and, on February 17, 2011, again affirmed Birkhead's conviction and sentence. Birkhead v. State, 57 So.3d 1223 (Miss. 2011) (Cause No. 2007-KA-00666-SCT). According to both the state court record and the docket of the United States Supreme Court, as available on its website, Birkhead did not seek a writ of certiorari to the United States Supreme Court.

On February 15, 2012, Birkhead signed a "Writ of Habeas Corpus Ad-Subjeciendum [sic], " which was filed in Greene County Circuit Court as Cause No. 2012-023(3). That petition was transferred to the Washington County Circuit Court. On May 7, 2012, the Washington County Circuit Court, deeming Birkhead's pleading as a request for post-conviction collateral relief under Miss. Code Ann. § 99-39-1, et seq., dismissed the action without prejudice as improper due to Birkhead's failure to first seek permission of the Mississippi Supreme Court under Miss. Code Ann. § 99-39-7. Birkhead appealed this decision to the Mississippi Supreme Court in Cause No. 2012-CP-00568-COA. On September 11, 2012, a "Show Cause Notice" was issued in that case instructing Birkhead to file his brief within fourteen days. On October 4, 2012, the appeal was dismissed for Birkhead's failure to do so. On October 25, 2012, the Mississippi Supreme Court's mandate issued in that cause. On February 21, 2013, Birkhead signed an application to the Mississippi Supreme Court seeking permission to proceed in the trial court with a petition for post-conviction collateral relief, which was docketed in Cause No. 2013-M-00330. On April 25, 2013, the Mississippi Supreme Court denied Birkhead's application.

II

Analysis

The State has moved to dismiss Birkhead's federal habeas petition as untimely filed under 28 U.S.C. § 2244(d). That section 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 ...

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