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Jenkins v. Mills

United States District Court, S.D. Mississippi, Southern Division

June 15, 2018

DARRELL JENKINS, #165362 PETITIONER
v.
ANDREW MILLS, Warden RESPONDENT

          MEMORANDUM OPINION AND ORDER OVERRULING PETITIONER'S [17] OBJECTIONS; ADOPTING MAGISTRATE JUDGE'S [16] REPORT AND RECOMMENDATION; GRANTING RESPONDENT'S [12] MOTION TO DISMISS; AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner Darrell Jenkins' Objections [17] to the Report and Recommendation [16] of United States Magistrate Judge Michael T. Parker and Respondent Andrew Mills' Motion to Dismiss [12]. After thoroughly reviewing Petitioner's Objections [17], the Magistrate Judge's Report and Recommendation [16], Respondent's Motion to Dismiss [12], related pleadings, the record as a whole, and relevant legal authority, the Court concludes that Petitioner's Objections [17] should be overruled, that the Magistrate Judge's Report and Recommendation [16] should be adopted as the finding of the Court, and that Respondent's Motion to Dismiss [12] should be granted. Petitioner Darrell Jenkins' 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus should be dismissed with prejudice.

         I. BACKGROUND

         A. State Court Proceedings

         On 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.

         On 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.

         On 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. App. 2016).

         B. Section 2254 Petition

         On April 14, 2017, Petitioner filed a 28 U.S.C. § 2254 Petition [1] for Writ of Habeas Corpus in this Court.[1] Respondent filed a Motion to Dismiss, arguing that the Petition was not timely filed and should be dismissed with prejudice. Mot. [12] at 9. Alternatively, Respondent argued that the Court should dismiss the Petition as procedurally defaulted. Id.

         The Magistrate Judge entered a Report and Recommendation [16] 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 [12] be granted and that the Petition be dismissed with prejudice.

         Petitioner has submitted Objections [17] to the Report and Recommendation [16], 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. [17] 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.

         II. DISCUSSION

         A. Standard of Review

         Because Petitioner has filed written Objections to the Magistrate Judge's Report and Recommendation [16], 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 ...


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