Sanders v. Itawamba County

          ORDER SETTING BRIEFING SCHEDULE

          ROY PERCY UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on the motion [23] by the Respondents to dismiss the instant petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 as untimely filed. In the alternative, the Respondents argue that Mr. Sanders did not exhaust his state remedies before proceeding in federal court, as he has not presented his claims to the Mississippi Supreme Court for review. Mr. Sanders argues that the court should consider his petition, despite its untimeliness and procedural deficiencies, as he is actually innocent of the crime of his conviction - possession of contraband (tobacco) in a prison facility. As set forth below, it appears to the court that he is correct, as tobacco is not one of the enumerated items in the definition of “contraband” in the statute under which Mr. Sanders was convicted.^[1] For this reason, the court will set a briefing schedule so that the parties may present focused arguments on this narrow issue.

         Facts and Procedural Posture

         Mr. Sanders pled guilty to the crime of possession of contraband (tobacco) in a prison facility:

It is unlawful for … any … offender to possess … any … contraband item … on property within the state belonging to the department, a county, a municipality, or other entity that is occupied or used by offenders, except as authorized by law.

Miss. Code Ann. § 47-5-193 (emphasis added).^[2] The statute specifies the items defined as “contraband”:

As used in Sections 47-5-191 through 47-5-195, … “contraband” means coin or currency, money orders, traveler's checks, promissory notes, credit cards, personal checks or other negotiable instruments, knives, sharpened instruments, tools, explosives, ammunition and drug paraphernalia as defined in Section 41-29-105(v).

Miss. Code Ann. § 47-5-191. Absent from the statutory definition of “contraband, ” however, is any mention of tobacco.^[3]

Violation of § 47-5-193 is a felony punishable by:

confinement in the Penitentiary for not less than three (3) years nor more than fifteen (15) years” and a fine of “not more than Twenty-five Thousand Dollars ($25, 000.00) or both.

Miss. Code Ann. § 47-5-195.

         Indeed, the trial court sentenced Mr. Sanders to the statutory maximum of fifteen years' imprisonment, credited him with time served, and suspended the remainder of the sentence, provided that Sanders “does not violate any laws of the United States, State, County or City and complies with the conditions of Post Release Supervision . . . .” Doc. 23-2. Sanders, however, violated the terms of his supervised release; the court revoked the 15 years of supervised release and imposed a sentence of 5 years' imprisonment, followed by five years of supervised release. Doc. 23-4. The new sentence runs consecutive to all sentences previously imposed. Id. The other provisions of the original sentencing order were unchanged. Id.

         Timeliness, Exhaustion, Procedural Default

         The Respondents argued in their motion to dismiss, Mr. Sanders' petition is untimely under one-year federal habeas corpus limitations period set forth in 28 U.S.C. § 2244(d)(1)(A), as it was filed approximately 920 days after the one-year deadline expired. They appear to be correct, however, as discussed below, Mr. Sanders has made a powerful showing that he is actually innocent of the crime of his conviction, which provides a path through which the court may address the merits of ...