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Wheeler v. Banks

United States District Court, S.D. Mississippi, Western Division

January 13, 2018

JOHNNIE EARL WHEELER, [1] #32067 RESPONDENT
v.
JACQUELYN BANKS PETITIONER

          REPORT AND RECOMMENDATION

          F. Keith Ball UNITED STATES MAGISTRATE JUDGE

         Before the Court is the petition for habeas corpus relief filed by Johnnie Earl Wheeler. See 28 U.S.C. § 2254. The Respondent has filed a Motion to Dismiss [6] pursuant to 28 U.S.C. § 2244(d), to which Wheeler has filed a “Traverse.” [7]. For the reasons that follow, the undersigned finds that Wheeler's petition is untimely and recommends that the Motion to Dismiss be granted.

         I. FACTS AND PROCEDURAL HISTORY

         On September 25, 1970, Wheeler was convicted of murder and sentenced to a term of life in prison by the Circuit Court of Lincoln County, Mississippi. The Mississippi Supreme Court dismissed Wheeler's direct appeal of his conviction when it determined that he had abandoned the appeal. Wheeler v. State, 249 So.2d 652 (Miss. 1971).[2] Since that time, the Parole Board of the Mississippi Department of Corrections (“Parole Board”) granted and revoked Wheeler's parole on seven different occasions.[3] See [6-2]. Wheeler's seventh and most recent revocation, dating from March 19, 2015, is the subject of this habeas petition[4] and stems from his arrest on January 9, 2015, for shoplifting. [2] at 5-6. After a hearing, the Parole Board revoked Wheeler's parole on March 19, 2015, based on failure to report, a residence violation, electronic monitoring violations, curfew violations, and two charges of felony shoplifting. [2] at 20.

         Wheeler signed his petition for habeas corpus relief on April 26, 2017, and it was filed in this Court on May 1, 2017.[5] The State responded with its Motion to Dismiss [6], and related exhibits, arguing that the Petition is untimely. Wheeler has filed a Traverse [7], asserting, inter alia, that because he was only charged with a crime, and not convicted, he is actually innocent of any crime that could have been the basis of his revocation and, furthermore, the statute of limitations does not apply to him.

         II. DISCUSSION

         Wheeler asserts two separate bases for relief in his petition [1], supported by a separate memorandum brief [2]. For reasons explained below, the Court finds that Wheeler's petition is untimely, therefore it will not address the merits of his arguments.

         The State points to 28 U.S.C. § 2244(d) as the basis of its position. Amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AAEDPA@), ' 2244(d) reads as follows:

(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 B
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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