United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Steven Eric Dison 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). Dison responded to the motion, and the court initially issued a memorandum opinion and final judgment dismissing the petition as untimely filed. Dison then sought reconsideration, requesting that the court find that equitable tolling applies because he was severely mentally ill during the time he could have timely filed his federal petition for a writ of habeas corpus. The court then granted Dison's motion for reconsideration and directed the State to provide his medical records, including mental health records, for the relevant time. The State provided the records, and the court has reviewed them. The matter is ripe for resolution. For the reasons set forth below, the court holds that Dison is not entitled to equitable tolling of the one-year habeas corpus limitations period. As such, 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
Steven Eric Dison is in the custody of the Mississippi Department of Corrections and is currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. Dison was convicted of one count of burglary of a dwelling in the Circuit Court of Oktibbeha County, Mississippi. On November 4, 2009, he was sentenced as a habitual offender under Miss. Code Ann. § 99-19-81, to serve twenty-five years in the custody of the Mississippi Department of Corrections ("MDOC"). Dison appealed his conviction and sentence to the Mississippi Supreme Court. On May 17, 2011, the Mississippi Court of Appeals affirmed the judgment of the circuit court. Dison v. State, 61 So.3d 975 (Miss.Ct.App. 2011) (Case No. 2010-KP-00183-COA). Dison did not seek rehearing, but on November 18, 2013 (over two years after the mandate had issued), he filed a petition for writ of certiorari to the Mississippi Supreme Court, which dismissed the petition as untimely filed under Rule 17(b) of the Mississippi Rules of Appellate Procedure. On March 8, 2012, Dison filed an Application to Proceed in the Trial Court with a Motion for Post-conviction Relief in the Mississippi Supreme Court (signed on March 7, 2012). On April 19, 2012, the Mississippi Supreme Court denied the application.
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 toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1) and (2).
As Dison never sought rehearing in the Mississippi Court of Appeals, fourteen days, the time period during which he could have sought such review, is added to the date on which his direct appeal ended and his conviction became final. See Miss. R. App. P. Rule 40(a); see also Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). Thus, Dison's conviction became final fourteen days after his conviction was affirmed, May 31, 2011 (May 17, 2011, plus 14 days). As Dison filed a state application for post-conviction relief ("PCR") as contemplated by 28 U.S.C. § 2244(d)(2) before May 31, 2012, the limitations period was tolled during its pendency. See Grillete, 372 F.3d at 769; Flannagan v. Johnson, 154 F.3d 196, 201 (5th Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998). Dison signed the motion on March 7, 2012, and the court denied it ...