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Cook v. Shaw

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

February 10, 2015

COBY COOK, Petitioner,
v.
FRANK SHAW, Respondent.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

This matter comes before the court on the pro se petition of Coby Cook 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). Cook has not responded, and the time 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

Cody Cook pled guilty to armed robbery in the Circuit Court of Webster County, Mississippi, and, on June 20, 2011, was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. By statute, there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101.

On December 18, 2011, Cook signed a AMotion for Post-Conviction Collateral Relief" and AMotion for Record and Transcripts, " which were filed in Webster County Cause No. 2012-7-CV-L. These motions were denied by orders entered February 8, 2012. The Mississippi Supreme Court's docket, as available on that court's website, does not reflect any attempt by Cook to appeal the trial court's denial of his post-conviction motion. Further, the Webster County Circuit Court Clerk's Office verified that Cook did not file a notice of appeal in that case.

Cook then filed a AMotion to Withdraw Guilty Plea and Alter or Amend the Judgment of Conviction" in Webster County Circuit Court Cause No. 2012-0062-CV-L, which he signed on July 12, 2012. The trial court treated this motion as a second petition for post-conviction collateral relief and, on August 6, 2012, denied Cook's motion. Cook appealed this decision to the Mississippi Court of Appeals, which affirmed the trial court's decision on November 5, 2013. Cook v. State, 126 So.3d 98 (Miss.Ct.App. 2013) (Cause No. 2012-CP-01489-COA). The state court of appeals' mandate issued on November 26, 2013.

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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