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Spearman v. Fisher

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

September 25, 2017

DUANE SPEARMAN PETITIONER
v.
MARSHAL FISHER; and ATTORNEY GENERAL JIM HOOD RESPONDENTS

          ORDER OF DISMISSAL

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         This habeas petition is before the Court for consideration of the motion to dismiss filed by the respondents, Marshal Fisher and Jim Hood. Doc. #7.

         I

         Procedural History

         A. Underlying State Proceedings

         Sometime 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.

         On or 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.

         B. This Action

         On or 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.

         On 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 reply.

         II Analysis

         This 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 ...

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