United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III UNITED STATES DISTRICT JUDGE.
habeas case is before the Court on the Report and
Recommendation  of United States Magistrate Judge Linda
R. Anderson. Judge Anderson recommended that the petition be
dismissed with prejudice as untimely. In his Objections,
Petitioner William Tedder contends that his petition should
be considered timely due to the application of equitable
tolling. Objections  at 2. For the reasons that follow,
Tedder's Objections are overruled, and the Court adopts
the Report and Recommendation as its opinion.
2007, “Tedder pleaded guilty in Madison County Circuit
Court to four counts of aggravated assault on a
law-enforcement officer and one count of felony
evasion.” Tedder v. State, 176 So.3d 122, 124
(Miss. Ct. App. 2015). At his August 6, 2007 sentencing
hearing, Tedder attempted to withdraw his guilty plea, but
the circuit court refused the request to do so and sentenced
him to 30-years' imprisonment.
2014, Tedder filed a motion for post-conviction relief in
Madison County Circuit Court. That court denied the motion,
Tedder appealed, and the Mississippi Court of Appeals
affirmed on October 6, 2015. Tedder thereafter filed the
instant petition for habeas relief, but the filing date is
not clear. Under the mailbox rule, a pro se inmate's
§ 2254 petition is deemed “filed as soon as the
pleadings have been deposited into the prison mail
system.” Spotville v. Cain, 149 F.3d 374, 376
(5th Cir. 1998). Here, Tedder signed the petition on March
10, 2016. Pet.  at 15. This reflects the earliest possible
filing date and the one the Court will use. That said, the
record includes an envelope with a “RECEIVED”
stamp from the correctional facility dated August 26, 2016,
which seems like the more probable filing date. Envelope
[1-2] at 2.
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), an inmate has one year from the date
on which the judgment of conviction becomes final within
which to file for federal habeas relief. 28 U.S.C. §
2244(d)(1). But “[t]he time during which a properly
filed application for State post-conviction or other
collateral review . . . is pending shall not be counted
toward any period of limitation.” Id. §
case, Judge Anderson correctly concluded that Tedder's
conviction became final no later than September 5, 2007, the
deadline for Tedder to appeal his conviction under
Mississippi law. Mark v. Thaler, 646 F.3d 191, 193
(5th Cir. 2011). Tedder pushes back on this conclusion,
making the unsupported assertion that his conviction
“never became final for AEDPA purpose[s]” because
his attorney did not file an appeal as he directed.
Objections  at 4. But “the finality of a
state-court judgment is expressly defined by [the] statute as
‘the conclusion of direct review or the expiration of
the time for seeking such review.'” Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009) (quoting 28 U.S.C.
§ 2244(d)(1)(A)). When Tedder failed to file a direct
appeal of his conviction within the time permitted under
Mississippi law- on or before September 5, 2007-his
conviction became final under AEDPA. And because Tedder did
not file a petition for post-conviction relief in state court
on or before September 5, 2008, AEDPA's statute of
limitations ran uninterrupted until it expired on September
5, 2008, unless it was equitably tolled.
tolling is permissible only in ‘rare and exceptional
circumstances.'” United States v. Wynn,
292 F.3d 226, 230 (5th Cir. 2002) (quoting Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). “To
obtain the benefit of equitable tolling, [Tedder] must
establish that (1) he pursued habeas relief with
‘reasonable diligence', and (2) some
‘extraordinary circumstances' stood in his way and
‘prevented' timely filing.” Palacios v.
Stephens, 723 F.3d 600, 604 (5th Cir. 2013) (quoting
Manning v. Epps, 688 F.3d 177, 183 (5th Cir. 2012)).
Here, Tedder contends that rare and exceptional circumstances
exist because his attorney falsely claimed that she was
pursuing a state-court appeal. See Objections 
at 4. He also says that he diligently pursued his pro se
motion for post-conviction review and this federal petition.
Id. at 8. Neither argument has merit.
to Tedder, he learned in February 2012 that “no notice
of appeal was taken.” Id. at 4. That statement
is doubtful, considering the fact that the University of
Kansas School of Law's Project for Innocence wrote him in
September 2010 denying his request for assistance and
directing him to similar organizations. See Id. at
11. Regardless, even using Tedder's February 2012 date,
and assuming Tedder is correct that he has factually and
legally established that his attorney's conduct presents
exceptional circumstances, his claim is still untimely.
alleged attorney conduct tolled the limitations period from
the date of sentencing until Tedder discovered the deception
in February 2012, then the AEDPA statutory period closed
February 2013, more than three years before his 2016 federal
habeas petition. Tedder says, however, that his 2014 state
petition for post-conviction relief was timely under
Mississippi law, and thus somehow breathes life back into his
time-barred habeas claims under § 2244(d)(2). Objections
 at 6. It does not.
begin with, the petition was not filed before the AEDPA
statutory window closed, so even assuming it was otherwise
properly filed, it would not toll anything. See 28
U.S.C. § 2244(d)(2). Regardless, tolling follows only a
properly filed state-court petition. Id. And here,
the Mississippi Court of Appeals concluded that Tedder's
state-court petition was untimely. Tedder, 176 So.3d
at 129. The Supreme Court has made clear that a state-court
post-conviction petition “rejected by the state court
as untimely is not ‘properly filed' within the
meaning of § 2244(d)(2).” Allen v.
Siebert, 552 U.S. 3, 5 (2007) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 414, 417 (2005)).
Accordingly, the state-court petition would not have tolled
the federal limitations period even if Tedder had filed it
while the AEDPA statutory window remained open.
even assuming extraordinary circumstances, Tedder fails the
second prong of the test-that he “diligently pursue[d]
§ 2254 relief.” Melancon v. Kaylo, 259
F.3d 401, 408 (5th Cir. 2001). As noted, Tedder may have
known there were problems with his appeal as early as 2010
when he heard back from the University of Kansas School of
Law. See Objections  at 11. At the latest, he
knew this by February 2012. Yet Tedder waited two more years
to file his state-court motion for post-conviction relief.
This shows a lack of diligence. See Singleton v.
Cain, No. 6:13-CV-2619, 2013 WL 6662525, at *4 (W.D. La.
Dec. 17, 2013) (finding lack of diligence in two-year delay
between denial of appeal and filing petition).
also fails to show that he “expediently file[d] his
federal habeas petition.” Melancon, 259 F.3d
at 408. Given his uncertainty about the state-court
proceedings, Tedder could have filed a
“protective” petition in this Court to avoid the
AEDPA one-year time bar. Pace, 544 U.S. at 416.
Moreover, once the state rejected his motion for
post-conviction relief on October 6, 2015, Tedder waited at
least another five months-if not ten-before filing this
federal habeas petition. Again, this delay shows a lack of
diligence. See Pace, 544 U.S. at 419 (petitioner
failed to act with “diligence” where he waited
five months after finality of post-conviction relief
proceedings to file a federal petition); Aguirre v.
United States, No. EP-09-CR-1267-FM-2, 2015 WL 13375625,
at *4 (W.D. Tex. Apr. 17, 2015) (finding one-to-two month
delay reflected lack of diligence); Love v. Cain,
No. 13-225-SDD, 2013 WL 6530799, at *5-6 (M.D. La. Dec. 12,
2013) (same for four-month delay).
on this record, Tedder has not shown that his petition was
timely even if equitable tolling applies through February
2012, and he further fails to show the necessary diligence.
The Report and Recommendation  of United States
Magistrate Judge Linda R. Anderson is therefore adopted as
the finding of this Court. ...