United States District Court, S.D. Mississippi, Eastern Division
June 12, 2015
LARRY EVANS, Petitioner,
STATE OF MISSISSIPPI, Respondent.
REPORT AND RECOMMENDATIONS
MICHAEL T. PARKER, Magistrate Judge.
THIS MATTER is before the Court on the Petition of Larry Evans for Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254, Respondent's Motion to Dismiss  pursuant to 28 U.S.C. § 2244(d) and Petitioner's Motion to Stay and/or Motion to Prosecute Proceeding . 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  be granted, Petitioner's Motion  be denied, and the Petition  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.
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. 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 . Thereafter, Respondent filed his Motion to Dismiss , 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.
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.
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  or his Amended Petition , Petitioner invokes the equitable tolling doctrine in his "Motion to Stay and/or Motion to Prosecute Proceeding." Motion  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  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. 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 his Petition outside the limitations period. In fact, Tubwell appropriately encouraged Petitioner to file his various state motions in a timely manner. See, e.g., Letter [9-1].
Miscarriage of Justice
Petitioner further contends that failure to allow his Petition results in a miscarriage of justice because the State failed to prove every element of the offense and because of his trial counsel's ineffectiveness. Petition  at 5; Amended Complaint  at 2; Motion  at 9; 10. The fundamental miscarriage of justice exception, if credible, "may allow a prisoner to pursue his constitutional claims... notwithstanding the existence of a procedural bar to relief." McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-32 (2013). However, the miscarriage of justice exception "applies to a severely confined category: cases in which new evidence shows it is more likely than not that no reasonable juror' would have convicted the petitioner." McQuiggin, 133 S.Ct. at 1927 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Such claims are strictly limited to claims of actual innocence supported by "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324. Furthermore, "without any new evidence of innocence, even the existence of a conceitedly meritorious violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to the merits of a barred habeas claim." Id. at 326.
In support of his miscarriage of justice claim, Petitioner asserts the evidence presented at trial was insufficient to support his conviction. He also argues that his trial counsel was ineffective. However, Petitioner fails to provide any "new reliable evidence" demonstrating his innocence. Petitioner's arguments fall far short of the high bar required to demonstrate actual innocence. Petitioner has failed to meet his burden of proving that additional statutory or equitable tolling is appropriate. Accordingly, Petitioner's federal habeas petition is time barred.
For the reasons stated above, the undersigned recommends that
1. Respondent's Motion to Dismiss  be GRANTED;
2. Petitioner's Motion to Stay and/or Motion to Prosecute Proceeding  be DENIED; and
3. Petitioner's Petition for Writ of Habeas Corpus be DISMISSED with prejudice.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendations, with a copy to the judge, the magistrate judge, and the opposing party. The District Judge at the time may accept, reject, or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this Court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Douglass v. United States Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996).