United States District Court, S.D. Mississippi, Southern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER, UNITED STATES MAGISTRATE JUDGE.
Deark Gardner filed on September 20, 2017, a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc.
. Gardner currently is serving a ten-year sentence
following his conviction for possession with intent to
distribute marijuana. Doc. [6-1]. The trial court entered the
sentencing order on August 28, 2014. Id. Gardner
filed an appeal with the Mississippi Supreme Court. On
September 17, 2015, the Mississippi Supreme Court affirmed
the conviction and sentence. Doc. [6-2]. Through counsel,
Gardner filed an application for post-conviction relief on
May 2, 2016. Doc. [6-3]. The Mississippi Supreme Court denied
the application on August 3, 2016. Doc. [6-4]. By order dated
August 29, 2016, the Mississippi Supreme Court denied
Gardner's motion for reconsideration of his petition for
post-conviction relief. Doc. [6-5]. On September 20, 2017,
through counsel, Gardner filed the instant § 2254
petition. Respondent has filed a motion to dismiss the
petition as time-barred by the AEDPA's one-year
limitation. Doc. .
U.S.C. § 2244 provides, in relevant part, that:
(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 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 any period of limitation under this
instant case, the trial court entered judgment of conviction
and sentence on August 28, 2014. The Mississippi Supreme
Court affirmed the judgment on September 17, 2015. Petitioner
filed a motion for rehearing in the Mississippi Supreme
Court, which was denied on December 3, 2015. There is no
record nor allegation that Petitioner sought a writ of
certiorari in the United States Supreme Court; therefore, his
judgment became final 90 days after the Mississippi Supreme
Court denied his petition for rehearing, or in this case, his
judgment became final on March 2, 2016. See Roberts v.
Cockrell, 319 F.3d 690, 694 (5th Cir. 2003); Ott v.
Johnson, 192 F.3d 510, 513 (5th Cir. 1999).
Absent tolling, Gardner's § 2254 petition would need
to be filed by March 2, 2017, to be timely. Gardner filed an
application for post-conviction relief, through counsel, on
May 2, 2016, thereby tolling the one-year limitations period.
The Mississippi Supreme court denied the application on
August 3, 2016. Accordingly, pursuant to § 2244(d)(2),
the one-year limitations period was tolled for 93 days during
the pendency of his application for post-conviction relief.
In other words, to be timely, Gardner needed to file his
§ 2254 petition by June 5, 2017 (March 2, 2017, plus 93
days). Gardner did not file the instant petition until
September 20, 2017, approximately 107 days past the deadline.
Gardner has not filed a response in opposition to dispute
Respondent's timeline. Accordingly, Gardner's
petition is time-barred.
Supreme Court has recognized that, in appropriate cases, the
limitations period may be equitably tolled. Holland v.
Florida, 130 S.Ct. 2549, 2560-62 (2010). A petitioner is
entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing. Id. at 2562. Gardner fails to allege
or argue any extraordinary circumstance that would justify
equitable tolling. See Melancon v. Kaylo, 259 F.3d
401, 408 (5th Cir. 2001).
on the foregoing, the undersigned recommends that
Respondent's  Motion to Dismiss be GRANTED and that
Michael Deark Gardner's 28 U.S.C. § 2254 petition