United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK U.S. DISTRICT JUDGE
matter comes before the Court on the pro se petition
of Mississippi inmate, David Sanders, for a writ of habeas
corpus under 28 U.S.C. § 2254. Respondents have moved to
dismiss the petition as time barred, and despite having been
afforded an opportunity to do so, Petitioner has failed to
respond. For the reasons set forth below, Respondents'
motion will be granted, and the instant petition will be
dismissed as untimely filed under 28 U.S.C. § 2244(d).
and Procedural Background
pleaded guilty and was convicted of grand larceny in the
Circuit Court of Monroe County on January 23,
2013. Doc. #7-1. He was sentenced to ten years
in the custody of the Mississippi Department of Corrections
(“MDOC”), with credit for time served and the
remainder of the sentence suspended with five years of
post-release supervision. Id. On December 18, 2013,
his suspended sentence was revoked for the following reasons:
failure to live without violating the laws of the State of
Mississippi; failure to pay court costs, fines, and
restitution; and failure to pay supervision fees. Doc. #7-2.
As a result of the revocation, Sanders was sentenced to serve
his original ten-year sentence in the custody of MDOC.
about October 14, 2016, Sanders filed the instant petition
challenging his revocation and resulting sentence. Doc. #1.
Respondents subsequently moved to dismiss the petition as
untimely filed, and Petitioner has failed to respond to the
motion. This matter is ripe for review.
issue of whether Respondents' motion should be granted
turns on 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 post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...