United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Petition of Joe Winfrey
McLemore for Writ of Habeas Corpus  pursuant to 28 U.S.C.
§ 2254 and Respondent's Motion to Dismiss 
pursuant to 28 U.S.C. § 2244(d). Having considered the
Motion, the record, and the applicable law, the undersigned
recommends that Respondent's Motion to Dismiss  be
granted and the Petition  be dismissed with prejudice as
August 12, 1996, Petitioner was convicted of armed robbery
and aggravated assault and sentenced to serve consecutive
terms in the custody of Mississippi Department of Corrections
with twenty-five (25) years for armed robbery and twenty (20)
years for aggravated assault. Petitioner was sentenced as a
habitual offender pursuant to Mississippi Code Ann. §
99-19-81, without eligibility for parole, suspension, or
reduction of his sentences. See [8-7] at 45-46. On
April 9, 1998, the Mississippi Supreme Court affirmed
Petitioner's convictions and sentences. See
March 10, 2016, almost eighteen years later, Petitioner filed
a motion for post-conviction relief with the Mississippi
Supreme Court. [9-12] at 118. On August 3, 2016, the Court
denied that motion as untimely. See Order [7-3]. In
October 2016, Petitioner filed a document titled,
“Parole Eligibility and other Sentence Reductions in
Newton County.” On October 31, 2016, the Newton County
Circuit Court construed the filing as a post-conviction
motion and denied it. See Order [7-5]. On March 17,
2017, Petitioner filed a second petition requesting parole,
which that court also denied. See Order [7-6].
April 17, 2018, Petitioner filed his pro se Petition
for Writ of Habeas Corpus under 28 U.S.C § 2254.
See Petition . Respondent has moved  to
dismiss the Petition as untimely pursuant to 28 U.S.C §
2244(d). Petitioner did not respond to the motion and the
time for doing so has long since expired.
Antiterrorism and Effective Death Penalty Act (AEDPA)
specifies that a petitioner seeking federal habeas relief
must file his federal petition within one year from the
(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.
28 U.S.C. § 2244(d)(1)(A-D); Egerton v.
Cockrell, 334 F.3d 433, 435 (5th Cir. 2003).
conviction became final-and the statute of limitations for
federal habeas relief began to run-on July 8,
1998.See Aguilar v. Banks, 2007 WL
2406973, at *2 (S.D.Miss. Aug. 2, 2007). Petitioner was
required to file his federal habeas petition by July 8, 1999,
unless he is entitled to statutory tolling, equitable
tolling, is actually innocent, or did not discover the
factual predicate of ...