United States District Court, S.D. Mississippi, Eastern Division
ORDER OVERRULING PETITIONER'S OBJECTION ,
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
, AND DISMISSING PETITION 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is Petitioner Derrick Newell's
(“Newell”) Objection  to the Report and
Recommendation  of United States Magistrate Judge Robert
H. Walker. Newell filed a Petition under 28 U.S.C. §
2254 for writ of habeas corpus by a person in state custody.
Respondent moved to dismiss Newell's Petition, asserting
that the Petition is time-barred. The Magistrate Judge
recommended that Newell's Petition be dismissed with
prejudice. After thoroughly reviewing the Report and
Recommendation and the position advanced by Newell, the Court
finds that Newell's Objection  should be overruled
and that the Magistrate Judge's Report and Recommendation
 should be adopted as the finding of the Court.
Newell's Petition for Writ of Habeas Corpus will be
dismissed with prejudice.
is currently in the custody of the Mississippi Department of
Corrections (“MDOC”) and is incarcerated at the
Mississippi State Penitentiary at Parchman, Mississippi. Pet.
 at 1. On August 25, 1998, Newell was convicted of
conspiracy to commit armed robbery. Id. Newell was
sentenced to life in prison as a habitual offender pursuant
to Mississippi Code § 99-19-83. On December 14, 1999,
the Mississippi Court of Appeals affirmed Newell's
conviction and sentence in Newell v. State of
Mississippi, 754 So.2d 1261 (Miss. Ct. App. 1999).
Newell signed an application for postconviction review with
the Mississippi Supreme Court on October 11, 2000, which the
court filed on October 17, 2000. Appl. [9-4]. The supreme
court denied the application on March 27, 2002. Order [9-5].
December 1, 2005, Newell signed a second application for
leave to seek postconviction relief, which the Mississippi
Supreme Court filed on December 8, 2005. Appl. [9-6]. On
January 25, 2006, the supreme court dismissed Newell's
application as time-barred and successive. Order [9-7]. On
July 19, 2006, Newell signed a motion to vacate his
conviction and sentence, which the supreme court filed on
July 21, 2006. Mot. [9-8]. The court dismissed this motion as
time-barred and successive. Order [9-9].
September 6, 2012, counsel, on Newell's behalf, filed a
third application for postconviction relief in the
Mississippi Supreme Court. Appl. [9-10]. The supreme court
granted the application and ordered Newell to file his motion
for postconviction relief in the trial court. Order [9-11].
Newell, through counsel, did so, and on August 19, 2013, the
trial court denied Newell's motion. Order [9-12]. Newell
appealed, and on April 18, 2015, the Mississippi Court of
Appeals affirmed the lower court's denial of relief in
Newell v. State, 180 So.3d 701 (Miss. Ct. App.
11, 2017, Newell filed in this Court a Petition  under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody. In his Petition, Newell claimed, inter
alia, that the trial judge erred by improperly admitting
hearsay evidence, the jury verdict was against the
sufficiency of the evidence, and the trial judge improperly
enhanced Newell's sentence. Pet.  at 2.
30, 2017, Respondent filed a Motion  to Dismiss pursuant
to 28 U.S.C. § 2244(d). Respondent argued that Newell
failed to timely file his habeas petition. Mot.  at 3.
Respondent asserted that Newell's conviction became final
on December 28, 1999, id. at 4, and that
Newell's limitations period was tolled from October 11,
2000 (the day he signed his application for postconviction
relief with the Mississippi Supreme Court), to March 27, 2002
(when the supreme court denied Newell's application),
extending Newell's deadline for filing his federal habeas
petition for 532 days until June 13, 2002, id. at
4-5. Respondent contended that Newell did not properly file
any motions prior to this June 13, 2002 deadline to further
toll the federal limitations period. Id. at 5.
also addressed Newell's request for equitable tolling,
arguing that Newell's claim that his sentence is illegal
is not a “rare and exceptional circumstance”
sufficient to invoke equitable tolling of the limitations
period. Id. at 8. Newell asserted that his delay in
filing his Petition was caused by counsel's error.
Pet'r.'s Mem.  at 8. Respondent contended that
there was nothing to suggest that counsel was hired prior to
the expiration of the limitations period in 2002, and,
furthermore, equitable tolling was not warranted for mere
attorney error or neglect. Mot.  at 9.
December 11, 2017, the Magistrate Judge issued his Report and
Recommendation, recommending that Newell's Petition be
dismissed with prejudice. R. & R.  at 5. The Magistrate
Judge noted that the Mississippi Court of Appeals affirmed
Newell's conviction and sentence on December 14, 1999,
and because Newell did not file a motion for rehearing or
seek a writ of certiorari in the Mississippi Supreme Court,
Newell's judgment became final on December 28, 1999,
fourteen days after his conviction was affirmed. Id.
at 2. Newell would thus have had to file his § 2254
petition by December 28, 2000, unless the limitations period
was tolled. Id. The Magistrate Judge found that
Newell tolled the limitations period by signing an
application for postconviction relief on October 11, 2000,
id., and that the one-year limitations period was
tolled for 532 days, from the time Newell signed the
application for postconviction relief until the Mississippi
Court of Appeals denied the application on March 27, 2002,
id. at 2-3. This extended Newell's deadline
until June 13, 2002. Id. at 3. The Magistrate Judge
found that though Newell filed additional applications for
postconviction relief in state court, none were filed prior
to June 13, 2002, and thus they did not toll the limitations
period. Id. Accordingly, Newell's Petition was
deemed time-barred. Id.
Magistrate Judge rejected Newell's assertions of
equitable tolling. Newell had alleged that his Petition was
delayed by the prison law library, the prison guards, and
Inmate Legal Assistance Program. Pet'r.'s Resp. 
at 2, 6. The Magistrate Judge found that these incidents,
even if true, occurred after the one-year deadline had
already expired. R. & R.  at 4. The Magistrate Judge
further found that Newell did not indicate that he hired
counsel to pursue a federal habeas petition prior to the
expiration of the June 13, 2002 deadline, and that,
regardless, Newell's assertions of blame on appellate
counsel did not justify equitable tolling. Id. at
4-5. The Magistrate Judge recommended that Respondent's
Motion to Dismiss be granted and Newell's Petition be
dismissed with prejudice. Id. at 5.
December 24, 2017, Newell signed an Objection  to the
Magistrate Judge's Report and Recommendation. Newell
claims that he hired and relied on counsel to pursue
postconviction relief, including his writ of habeas corpus.
Newell also contends that he received ineffective assistance
of counsel at trial and sentencing, that his sentence was
imposed illegally, and that the state courts have not
adequately reviewed his challenge to his conviction and