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O'Neal v. Jacquelyn Banks

United States District Court, N.D. Mississippi, Aberdeen Division

April 25, 2017

JOE WESLEY O'NEAL PETITIONER
v.
JACQUELYN BANKS RESPONDENT

          MEMORANDUM OPINION AND ORDER

          Sharion Aycock U.S. DISTRICT JUDGE

         This 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.

         Facts and Procedural History

         Joe 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 By Order filed October 25, 2011, O'Neal's suspended sentence was revoked, and he was ordered to serve the remaining nineteen years in the custody of MDOC.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.

         On 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.

         Legal Standard

         The 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 ...


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