United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OVERRULING
PETITIONER'S  OBJECTIONS; ADOPTING MAGISTRATE
JUDGE'S  REPORT AND RECOMMENDATION; GRANTING
RESPONDENT'S  MOTION TO DISMISS; AND DISMISSING
PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Darrell Jenkins'
Objections  to the Report and Recommendation  of
United States Magistrate Judge Michael T. Parker and
Respondent Andrew Mills' Motion to Dismiss . After
thoroughly reviewing Petitioner's Objections , the
Magistrate Judge's Report and Recommendation ,
Respondent's Motion to Dismiss , related pleadings,
the record as a whole, and relevant legal authority, the
Court concludes that Petitioner's Objections  should
be overruled, that the Magistrate Judge's Report and
Recommendation  should be adopted as the finding of the
Court, and that Respondent's Motion to Dismiss 
should be granted. Petitioner Darrell Jenkins' 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus should be
dismissed with prejudice.
State Court Proceedings
February 18, 2011, Petitioner Darrell Jenkins
(“Petitioner” or “Jenkins”) entered
an Alford plea to a charge of sexual battery in the
Circuit Court of Greene County, Mississippi. See
Order [12-1] at 1-2; Jenkins v. State, 202 So.3d
220, 221 (Miss. Ct. App. 2016) (citing North Carolina v.
Alford, 400 U.S. 25 (1970)). On that same date, the
trial court sentenced Petitioner to serve a term of
imprisonment of twenty-five (25) years in the custody of the
Mississippi Department of Corrections, with fifteen (15)
years to serve without the benefit of parole, ten (10) years
suspended, and five (5) years to be served on post-release
supervision. Order [12-1] at 1.
April 12, 2013, over two years after sentencing, Petitioner
filed a motion for records and transcripts in the Circuit
Court of Greene County, Mississippi, see Mot. [12-3]
at 15-17, which the trial court denied on April 25, 2013,
because Petitioner had not filed a proper motion for
post-conviction relief, Order [12-3] at 12. On May 10, 2013,
Petitioner appealed. Notice of Appeal [12-3] at 3. The
Mississippi Supreme Court dismissed the appeal on January 9,
2014, due to Petitioner's failure to file a brief, and
the mandate issued on January 30, 2014. Mandate [12-3] at 1.
September 20, 2013, Petitioner filed a motion to vacate,
reduce, and/or set aside sentence in the Circuit Court of
Greene County, Mississippi, see Mot. [12-2] at 3-49,
which the Circuit Court treated as a petition for
post-conviction collateral relief, see Order [12-4]
at 1. The Circuit Court denied Petitioner's motion on
June 12, 2015. See Order [12-4] at 2-5. Petitioner
appealed, and on September 27, 2016, the Mississippi Court of
Appeals affirmed the denial of Petitioner's motion.
See Jenkins v. State, 202 So.3d 220, 223 (Miss. Ct.
Section 2254 Petition
April 14, 2017, Petitioner filed a 28 U.S.C. § 2254
Petition  for Writ of Habeas Corpus in this
Court. Respondent filed a Motion to Dismiss,
arguing that the Petition was not timely filed and should be
dismissed with prejudice. Mot.  at 9. Alternatively,
Respondent argued that the Court should dismiss the Petition
as procedurally defaulted. Id.
Magistrate Judge entered a Report and Recommendation  on
March 2, 2018, concluding that Petitioner filed his Petition
over five years past the one-year limitations period set
forth in 28 U.S.C. § 2244(d)(1)(A), and that he was not
entitled to statutory or equitable tolling. The Magistrate
Judge recommended that Respondent's Motion to Dismiss
 be granted and that the Petition be dismissed with
has submitted Objections  to the Report and
Recommendation , arguing that “[a] procedural bar
cannot be applied in the face of ‘errors affecting
fundamental rights' because such a deprivation of liberty
is to of [sic] a violation to be subjected to a procedural
bar.” Objs.  at 1. Petitioner refers to purportedly
“newly discovered evidence, ” which he states
constitutes an exception to the statute of limitations.
See Id. at 2. According to Petitioner, the
statements at issue existed at the time of his trial, but
were not discovered by him until April 25, 2013. See
Id. at 2-3.
Standard of Review
Petitioner has filed written Objections to the Magistrate
Judge's Report and Recommendation , the Court
“make[s] a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. §
636(b)(1); Rule 8(b) of Rules Governing Section 2254 Cases in
the United States District Courts. “Such review means
that this Court will examine the entire record and will make
an independent assessment of the law.” Lambert v.
Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013 WL 786356, *1
(S.D.Miss. Mar. 1, 2013). In conducting a de novo ...