United States District Court, S.D. Mississippi, Southern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
ROBERT H. WALKER, Magistrate Judge.
On September 17, 2014, Ronnie Harper filed a 28 U.S.C. § 2254 petition for writ of habeas corpus. Doc. . Harper pleaded guilty to sexual battery, and the Circuit Court of Harrison County entered an order of judgment and conviction on November 15, 2011. Doc. [15-1] & [15-2]. Harper filed a motion for post-conviction collateral relief in state court that was denied both by the trial court and on appeal. Doc. [15-5], [15-6] & [15-7]. Harper then filed the instant § 2254 petition on September 7, 2014. Harper's initial pleading in this cause of action was styled as a motion for an extension of time to file his habeas petition. See Doc. . Harper later filed an amended petition with a supporting memorandum outlining his claims. Doc.  & . In the amended § 2254 petition, Harper alleges that (1) he received ineffective assistance of counsel because his attorney "mis-advised" him to plead guilty to a charge of sexual battery; (2) counsel failed to investigate; and (3) the trial court erred in not conducting an evidentiary hearing. Id.
Respondents filed a motion to dismiss arguing that Harper's petition is time barred by the AEDPA's one-year limitation period because he filed his petition approximately 21 days beyond the deadline. Doc.  at 5. Harper filed a response in which he does not dispute that his petition is untimely but argues in essence that he should be entitled to tolling because (1) he was housed in close confinement at the time his petition was due; (2) he is unable to read; and (3) there was no legal assistance or adequate law library at the Marshall County Correctional Facility. Doc. . On February 23, 2015, subsequent to the conclusion of briefing on Respondents' motion to dismiss, Harper filed what he styled as a "motion in bar". Doc. . The Court construes the motion as a sur-reply. Although Harper requests that the Court strike as moot Respondents' motion to dismiss, Harper's "motion in bar" primarily raises arguments in support of tolling.
LAW AND ANALYSIS
28 U.S.C. § 2244 provides, in relevant part, that:
(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 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 post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Harper entered a guilty plea, and on November 15, 2011, the Circuit Court entered the judgment and sentence. Doc. [15-1] & [15-2]. By statute there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101. Accordingly, the conviction and sentence became final on the date he was sentenced. See Roberts v. Cockrell, 319 F.3d 690, 693-94 (5th Cir. 2003). Harper needed to file his § 2254 petition on or before November 15, 2012, in order to be timely under the AEDPA's one-year limitation period. Harper signed the instant petition on August 20, 2014. It was filed in the clerk's office on September 17, 2014. Absent any statutory or equitable tolling, Harper's petition is untimely.
A properly filed application for post-conviction relief in state court will toll the one-year limitations period. 28 U.S.C. § 2244(d)(2). Although Harper's § 2254 petition was filed almost two years beyond the AEDPA's one-year limitations period, he is entitled to tolling pursuant to § 2244(d)(2) because he filed a motion for post-conviction relief in state court on February 1, 2012. The motion was signed January 25, 2012. Doc. [15-5]. The trial court denied Harper's motion on June 29, 2012. Doc. [15-6]. He appealed the lower court's denial of post-conviction relief. On September 17, 2013, the Mississippi Court of Appeals affirmed the trial court's decision. Doc. [15-7]. The court of appeals mandate issued on October 8, 2013, thereby ending the tolling period. See Watts v. Brewer, 416 Fed.App'x 425 (5th Cir. 2011); Pickett v. King, 2014 WL 2446150 at *2 (S.D.Miss. 2014). Giving Harper every benefit of the doubt, from the time he signed the motion for post-conviction relief (January 25, 2012) until the issuing of the court of appeals' mandate (October 8, 2013), the limitations period was tolled by 622 days. In other words to be timely under the AEDPA, Harper needed to file a § 2254 petition on or before July 30, 2014 (November 15, 2012, plus 622 days). Harper did not file the instant petition until September 17, 2014. Even if the Court were to consider the signature date of August 20, 2014, Harper's § 2254 petition is still untimely by approximately 21 days.
Harper does not dispute Respondents' time line or argue that the petition was filed within one year of his conviction and sentence becoming final. Rather he argues that his late filing should be excused on several grounds. He argues that (1) he was housed in close confinement so that he was unable to obtain the necessary material to research or prepare a timely petition; (2) he is not able to read or write; and ...