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McLemore v. Bradley

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

August 8, 2018

JOE WINFREY MCLEMORE, # 72051 PETITIONER
v.
WARDEN JOHN BRADLEY RESPONDENT

          REPORT AND RECOMMENDATION

          MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Petition of Joe Winfrey McLemore for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss [7] 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 [7] be granted and the Petition [1] be dismissed with prejudice as untimely.

         PROCEDURAL HISTORY

         On 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.[1] 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 [1-3].

         On 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].

         On April 17, 2018, Petitioner filed his pro se Petition for Writ of Habeas Corpus under 28 U.S.C § 2254. See Petition [1]. Respondent has moved [7] 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.

         ANALYSIS

         The 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 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 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).

         Petitioner's conviction became final-and the statute of limitations for federal habeas relief began to run-on July 8, 1998.[2]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 ...


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