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Evans v. State

United States District Court, S.D. Mississippi, Eastern Division

June 12, 2015

LARRY EVANS, Petitioner,


MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on the Petition of Larry Evans for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2254, Respondent's Motion to Dismiss [8] pursuant to 28 U.S.C. § 2244(d) and Petitioner's Motion to Stay and/or Motion to Prosecute Proceeding [9].[1] Having considered the parties' submissions, the documents made a part of the record, and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss [8] be granted, Petitioner's Motion [9] be denied, and the Petition [1] be dismissed with prejudice.


On June 8, 2010, Petitioner was convicted of robbery in the Circuit Court for the Second Judicial District of Jones County and sentenced to a term of fifteen (15) years. Petitioner appealed his conviction and the Mississippi Court of Appeals affirmed his conviction and sentence on June 14, 2011. Evans v. State, 75 So.3d 2011 (Miss. Ct. App. 2011). The Mississippi Court of Appeals denied Petitioner's Motion for Rehearing on September 6, 2011. Petitioner sought further review in the Mississippi Supreme Court via certiorari, which the court denied on December 8, 2011. Based on a review of the record and a review of the United States Supreme Court's automated docket system, Petitioner did not file for writ of certiorari in the United States Supreme Court.[2]

On November 17, 2014, Petitioner filed his first Motion for Post Conviction Relief in state court. Motion [8-3]. On January 14, 2015, the Supreme Court denied the Motion as procedurally barred and, alternatively, as without merit. Order [8-4]. On November 19, 2014, Petitioner filed a second Motion for Post Conviction Relief in Jones County Circuit Court.[3] Motion [8-5]. On December 31, 2014, Jones County Circuit Court dismissed the Motion as time barred. Order [8-6]. On January 29, 2015, Jones County Circuit Court denied Petitioner's Motion for Rehearing. Order [8-7]. On February 5, 2015, Petitioner filed the instant Petition for Writ of Habeas Corpus [1].[4] Thereafter, Respondent filed his Motion to Dismiss [8], asserting that the Petition was not timely filed and should be dismissed.


The Antiterrorism and Effective Death Penalty Act ("AEDPA") specifies that a petitioner seeking federal habeas relief must file his federal petition within one year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(a); Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003). The Fifth Circuit has further clarified that the time for seeking direct review includes the ninety (90) days allowed for a petition to the United States Supreme Court following an entry of judgment by the state court of last resort. Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). In this case, the Mississippi Supreme Court denied certiorari on December 8, 2011. Thus, Petitioner's conviction became final on March 7, 2012, ninety (90) days after the state's highest court denied certiorari review of his case. Petitioner was required to file his federal habeas petition by March 7, 2013, one year after his conviction became final. As Petitioner did not file the instant petition until February 5, 2015, it is time barred absent statutory or equitable tolling.

Statutory Tolling

Petitioner is entitled to statutory tolling of the one year time period for any time during which a properly filed application for State post-conviction relief or other collateral review is pending. 28 U.S.C. § 2244(d)(2). Petitioner is not entitled to statutory tolling when he did not "file a federal habeas petition or any other form of collateral attack on his conviction until after the statute of limitations had already expired." Medley v. Thaler, 660 F.3d 833, 834 (5th Cir. 2011). Petitioner's one year AEDPA statute of limitations expired on March 7, 2013. As noted above, Petitioner signed both Motions for Post Conviction Relief on November 13, 2014. Petitioner did not file his first Motion for Post Conviction Relief until November 17, 2014, and did not file the second until November 19, 2014. Because Petitioner failed to file either of his state motions before March 7, 2013, he is not entitled to statutory tolling.

Equitable Tolling

The application of the equitable tolling doctrine in a federal habeas petition rests within the sound discretion of the district court. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Equitable tolling is appropriate only in "rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). The equitable tolling doctrine is appropriate "principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999) (citing Coleman, 184 F.3d at 402 (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996))). Petitioner must also demonstrate that "he has been pursuing his rights diligently." Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2013) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner bears the burden of proving the existence of sufficiently rare and exceptional circumstances that trigger equitable tolling. Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). Moreover, ignorance of the law does not justify equitable tolling and is not an excuse for failure to file promptly. Id.

Though Petitioner did not address his untimeliness in either his initial Petition [1] or his Amended Petition [5], Petitioner invokes the equitable tolling doctrine in his "Motion to Stay and/or Motion to Prosecute Proceeding." Motion [9] at 6, 15. Petitioner argues that he is entitled to equitable tolling on grounds that he was being assisted by "PPS Legal Research Clinic" and paralegal Robert Tubwell, who was engaged in the unauthorized practice of law. Motion [9] at 7. However, the "equitable tolling doctrine is appropriate principally where the plaintiff is actively mislead by the defendant. " Ott 192 F.3d at 513 (emphasis added). In this case, Petitioner has failed to prove that the Defendant mislead him in any way and instead argues that Tubwell mislead him.

Petitioner contends that Tubwell was engaged in the unauthorized practice of law.[5] However, Petitioner fails to explain why he relied on Tubwell's advice and why that reliance triggers equitable tolling. Tubwell clearly indicates, via a bold print disclaimer enclosed in a box on every page of correspondence, that he "cannot give legal advice" and "that nothing said in this letter or any communication... should be implied or construed as being legal advice or representation or the practice of law in any manner." Letter [9-1]. Petitioner fails to explain why he would rely on Tubwell's advice despite these disclaimers. Furthermore, none of the advice that Tubwell provided would have lead Petitioner to file ...

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