United States District Court, N.D. Mississippi, Greenville Division
ORDER OF DISMISSAL
M. BROWN UNITED STATES DISTRICT JUDGE
habeas petition is before the Court for consideration of the
motion to dismiss filed by the respondents, Marshal Fisher
and Jim Hood. Doc. #7.
Underlying State Proceedings
in January 2011, Duane Spearman was indicted in the Circuit
Court of Washington County, Mississippi, on one count of
armed robbery (Count I); and one count of armed robbery with
a firearm enhancement (Count II). Doc. #7-2; Doc. #7-3. On
September 26, 2011, Spearman pled guilty to the two counts of
the indictment but not the firearm enhancement of Count II.
Doc. #7-2. Following the guilty plea, the presiding judge
sentenced Spearman to concurrent terms “of fifteen (15)
years in the custody of the Mississippi Department of
Corrections: Ten (10) years to serve followed by five (5)
years Post Release Supervision.” Id.
about July 7, 2014, Spearman filed in the Circuit Court of
Washington County a “Motion for Post-Conviction
Collateral Relief” (“PCR”). Doc. #7-3.
Spearman's motion alleged that his conviction and
judgment violated the Fifth and Sixth Amendments of the
United States Constitution. Id. at 3. At an unknown
time in 2015, Spearman filed a motion with the Mississippi
Supreme Court seeking an order directing the Circuit Court to
rule on his PCR motion. See Doc. #7-5. The PCR
motion was denied on September 29, 2015. Doc. #7-4.
Approximately one week later, on October 5, 2015, the
Mississippi Supreme Court denied Spearman's motion for
mandamus relief. Doc. #7-5.
about June 17, 2016, Spearman, acting pro se, filed the
instant petition for a writ of habeas corpus. Doc. #1.
Spearman's petition challenges the September 26, 2011,
state court judgment. Id. at 1. Also on or about
June 17, 2016, Spearman filed a motion to proceed in forma
pauperis with his petition. Doc. #2.
August 12, 2016, United States Magistrate Judge S. Allan
Alexander issued an order granting the motion to proceed in
forma pauperis and directing the respondents in this action
to respond to the petition. Doc. #4. On October 21, 2016, the
respondents filed a motion to dismiss Spearman's petition
as barred by the applicable statute of limitations. Doc. #7.
Spearman responded in opposition to the motion on or about
December 17, 2016. Doc. #11. The respondents did not file a
case is governed by 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 ...