United States District Court, N.D. Mississippi, Aberdeen Division
ORDER SETTING BRIEFING SCHEDULE
PERCY UNITED STATES MAGISTRATE JUDGE
matter comes before the court on the motion  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. For this reason, the court
will set a briefing schedule so that the parties may present
focused arguments on this narrow issue.
and Procedural Posture
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). The statute specifies the items defined as
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.
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.
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.
Exhaustion, Procedural Default
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 ...