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 Joe Wesley O'Neal (“O'Neal”), an
inmate in the custody of the Mississippi Department of
Corrections (“MDOC”), for a writ of habeas corpus
under 28 U.S.C. §2254. Respondent has moved to dismiss
the petition as time-barred pursuant to 28 U.S.C. §2244,
and O'Neal has responded. For the reasons set forth
below, Respondent's motion will be granted and the
instant petition dismissed with prejudice.
and Procedural History
O'Neal pleaded guilty to the aggravated assault of his
mother in the Circuit Court of Tishomingo County,
Mississippi, and was sentenced to a term of twenty years,
with credit for time served and the remainder suspended,
along with five years post-release supervision. See
Doc. #9-1. By Order filed October 25, 2011, O'Neal's
suspended sentence was revoked, and he was ordered to serve
the remaining nineteen years in the custody of MDOC.
See Doc. #9-2.
February 7, 2013, O'Neal signed a “Motion to Vacate
and Set Aside Sentence, ” challenging the revocation of
his suspended sentence, which was stamped “filed”
in the trial court on April 10, 2013. See Doc. #9-3.
On April 15, 2013, the trial court denied O'Neal's
motion, finding that the claims raised therein lacked merit.
See Doc. #9-4. Aggrieved by this decision,
O'Neal appealed, but the decision to deny post-conviction
relief was affirmed. See O'Neal v. State, 156
So.3d 353 (Miss. Ct. App. 2014), reh'g denied,
Oct. 28, 2014, cert. denied, January 29, 2015;
see also Docs. #9-5 & 9-6. In June 2015,
O'Neal filed an “Application for Leave to Proceed
in the Trial Court” with the Mississippi Supreme Court
that was dismissed by Order filed July 23, 2015, for lack of
jurisdiction. See Doc. #9-7 (Cause No.
2015-M-00994). Subsequently, O'Neal sought federal habeas
relief. O'Neal signed the instant petition on January 18,
2017, and it was stamped as “filed” in this Court
on January 25, 2017. See Doc. #1.
instant petition for writ of habeas corpus is subject to the
statute of limitations of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Egerton
v. Cockrell, 334 F.3d 433, 436 (5th Cir. 2003). The
issue of whether Respondent's motion should be granted
turns on the statute's limitation period, 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.
28 U.S.C. § 2244(d)(1). The federal limitations period
is tolled while a “properly filed application for State
post-conviction or other collateral review” is pending.
See 28 U.S.C. § 2244(d)(2). In “rare and
exceptional circumstances, ” the limitations period may
be equitably ...