United States District Court, S.D. Mississippi, Northern Division
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
Earl Lovern filed on October 25, 2017, a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Doc. .
Lovern is currently in custody of the Mississippi Department
of Corrections. On December 2, 2009, he executed a petition
to enter guilty plea. Doc. [11-2]. On December 10, 2009, the
Circuit Court of Rankin County, Mississippi accepted
Lovern's guilty plea and entered a judgement of
conviction and sentence. Doc. [11-3]. On August 22, 2016,
Lovern filed a petition for post-conviction relief in Rankin
County Circuit Court. Doc. [11-5]. The court dismissed
Lovern's petition as time barred, because he filed it
almost seven years after his guilty plea and it did not fall
within any of the exceptions to Mississippi's statute of
limitations for post-conviction relief. Doc. [11-6]. The
Mississippi Court of Appeals affirmed the Circuit Court's
dismissal of Lovern's petition. Doc. [11-7]. Lovern then
filed the instant § 2254 petition on October 25, 2017.
Respondent has filed a motion to dismiss the petition as
time-barred by the AEDPA's one-year limitation. Doc.
. Subsequently, Lovern filed a motion to dismiss his
petition pursuant to Fed.R.Civ.P. 41(a)(2). 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 December 10, 2009, pursuant to Lovern's
guilty plea. By statute, there is no direct appeal from a
guilty plea. See Miss. Code Ann. § 99-35-101.
Accordingly, Lovern's judgment became final on December
10, 2009. 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, Lovern's
§ 2254 petition would need to be filed by December 10,
2010, to be timely. Lovern did not file an application for
post-conviction relief in state court until August 22, 2016.
Thus, the untimely state petition did not operate to toll the
AEDPA's one-year limitation period. There is no record of
any earlier filed state petition. Lovern filed the instant
federal habeas petition on October 25, 2017, more than six
years beyond the deadline for filing a timely §2254
petition. Lovern has not filed a response in opposition to
Respondent's motion to dismiss. He does not dispute the
time line as presented in Respondent's motion. Likewise,
in his § 2254 petition, Lovern does not argue that his
petition is timely. Accordingly, unless Lovern identifies
some exception to the limitation period, his petition is
time-barred and should be dismissed with prejudice.
petition, Lovern appears to argue for an exception to the
limitation period. He argues that he is actually innocent of
the crime of conviction. Doc.  at 3. He also attributes
the delay in filing to his status as an indigent litigant
with no legal training and only a high school education.
Id. at 19. Lovern further asserts that at the time
of his arrest, he was unable to defend himself due to a lack
of financial resources and he was forced to accept
court-appointed counsel. Id.
Supreme Court has held that actual innocence may serve as a
means to overcome a procedural bar such as the expiration of
a statute of limitations. See McQuiggin v. Perkins,
569 U.S 383, 386 (2013). To support a credible claim of
actual innocence, a petitioner must support his allegations
of constitutional error with new reliable evidence that was
not presented at trial. Schlup v. Delo , 513 U.S.
298, 324 (1995). “Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful.” Id.
Petitioner must persuade the court that “in light of
the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.”
Id. at 329.
assertion of actual innocence is unpersuasive. First, Lovern
pleaded guilty to the charged offense. He admitted under oath
to the acts supporting the conviction now challenged.
Furthermore, Lovern offers no “new reliable
evidence” demonstrating actual innocence to negate his
sworn admission of guilt. He speculates about the existence
of biological or DNA testing, but does not offer proof that
any such exculpatory evidence exists. The undersigned notes
that Lovern was indicted on March 2, 2009, for crimes that
occurred in 2005 and 2006. Given the time lapse, it is
unlikely that any such ...