United States District Court, N.D. Mississippi, Aberdeen Division
matter comes before the court on the pro se petition
of Milford Lee Roop for a writ of habeas
corpus-under 28 U.S.C. § 2254. The State has moved
to dismiss the petition as untimely filed under 28 U.S.C.
§ 2244(d)(2). Mr. Roop has not responded to the motion,
and the deadline to do so has expired. The matter is ripe for
resolution. For the reasons set forth below, the State's
motion to dismiss will be granted and the instant petition
for a writ of habeas corpus dismissed as untimely
and Procedural Posture
Lee Roop pled guilty in Itawamba County Circuit Court to the
charge of "burglary and larceny of a church" and
was sentenced on June 8, 2016, to serve a term of fourteen
years in the custody of the Mississippi Department of
Corrections (MDOC), with eight years suspended and five years
post-release supervision. See Exhibit
The records of the Itawamba County Circuit Court reflect that
Mr. Roop filed documents challenging his plea and sentence in
that court. On November 9, 2016, Mr. Roop signed a
"Motion for Post-Conviction Collateral Relief, "
which was stamped "filed" on January 9, 2017, in
Itawamba County Circuit Court Cause No. CV2017-00003.
See Exhibit B. The trial court denied the motion on
February 10, 2017, finding that Mr. Roop's claims were
without merit. See Exhibit C. The court granted Mr.
Roop's application to proceed in forma pauperis
the same day. See Exhibit D. Mr. Roop did not file a
notice of appeal from the lower court's decision denying
post-conviction collateral relief. See Exhibit E.
in this case is governed by 28 U.S.C. § 2244(d), which
(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 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
the 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 postconviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d)(1) and (2).
Roop's state conviction became final for the purposes of
28 U.S.C. § 2244(d) on June 8, 2016 - the date the trial
court entered judgment on his plea of guilty. Thus, his
initial federal habeas corpus deadline was June 8,
2017. However, Mr. Roop enjoyed statutory tolling under 28
U.S.C. § 2244(d)(2) from the date his state application
for post-conviction relief was signed (November 9, 2016),
until the date the circuit court entered the order denying
that motion (February 10, 2017), a period of ninety-three
days - moving his federal habeas corpus deadline to
September 11, 2017.
the "mailbox rule, " the instant pro se
federal petition for a writ of habeas corpus is
deemed filed on the date the petitioner delivered it to
prison officials for mailing to the district court.
Coleman v. Johnson,184 F.3d 398, 401, reh
'g and reh 'g en banc denied,196 F.3d 1259
(5th Cir. 1999), cert, denied, 529 U.S.
1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000) (citing
Spotville v. Cain,149 F.3d 374, 376-78
(5th Cir. 1998)). In this case, the federal
petition was filed sometime between the date it was signed on
September 20, 2017, and the date it was received and stamped
as "filed" in the district court on September 26,
2017. Giving the petitioner the benefit of the doubt by using
the earlier date, Mr. Roop filed the instant petition nine
days after the September 11, 2017, filing deadline. Mr. ...