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Brooks v. King

United States District Court, N.D. Mississippi, Greenville Division

September 10, 2018

TIMMIE BROOKS PETITIONER
v.
RON KING and ATTORNEY GENERAL JIM HOOD RESPONDENTS

          ORDER ADOPTING REPORT & RECOMMENDATION

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of United States Magistrate Judge Jane M. Virden regarding Timmie Brooks' petition for a writ of habeas corpus. Doc. #14.

         I Procedural History

         On or about February 14, 2017, Timmie Brooks filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his February 18, 2010, conviction and sentence in the Circuit Court of Coahoma County, Mississippi. Doc. #1 at 1, 15. On September 29, 2017, Ron King and Jim Hood (“respondents”) moved to dismiss the petition. Doc. #11. Brooks responded on October 31, 2017, Doc. #12; the respondents replied on November 20, 2017, Doc. #13.

         On March 7, 2018, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation (“R&R”) recommending that Brooks' petition be dismissed with prejudice as untimely under 28 U.S.C. § 2244(d). Doc. #14 at 6. On or about March 21, 2018, Brooks acknowledged receipt of the R&R, Doc. #15, and filed objections, Doc. #16. On March 26, 2018, the respondents filed a notice of their intent not to respond to Brooks' objections. Doc. #17.

         II Standard of Review

         Where objections to a report and recommendation have been filed, a court must conduct a de novo review of the report and recommendation to which objections have been specifically raised. Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex. 2009). “With respect to those portions of the report and recommendation to which no objections were raised, the Court need only satisfy itself that there is no plain error on the face of the record.” Id. (citing Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996), superseded on other grounds by 28 U.S.C. § 636(b)(1)).

         III Analysis

         The R&R recommends dismissing Brooks' petition with prejudice as untimely under 28 U.S.C. § 2244(d) because Brooks failed to file it within one year of his state court judgment becoming final and because he failed to establish that equitable tolling of the one-year limitation period is warranted. Doc. #14 at 6.

         In his objections to the R&R, Brooks essentially reasserts the claims and arguments advanced in his petition and his response opposing dismissal. He contends that (1) the state “played a major role in causing [him] to miss his deadline;” (2) there are no transcripts or record of his plea hearing and there is no evidence that a valid plea was entered;[1] (3) he is serving an illegal sentence; (4) he is pro se and being assisted by “jailhouse lawyers” who are providing ineffective assistance of counsel; and (5) his guilty plea is invalid because it violated Federal Rule of Criminal Procedure 11. Doc. #16 at 2-7.

         Pursuant to the Anti-Terrorism and Effective Death Penalty Act, 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.” 28 U.S.C. § 2244 (d)(1). The one-year period runs from the latest of four possible dates; relevant here is “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). Brooks pleaded guilty to murder and capital murder and was sentenced to life imprisonment without the possibility of parole in the Circuit Court of Coahoma County, Mississippi, on February 18, 2010. Doc. #11-1 at 7-8, 13-14. Because Mississippi proscribes direct appeals from guilty pleas, [2] Brooks' judgment of conviction became final on February 18, 2010. Brooks filed his petition on or about February 15, 2017-nearly seven years after his conviction became final. Moreover, it was not until May 2, 2011-over two months after the § 2244 limitation period ran-that Brooks first sought the transcripts from his plea hearing. Accordingly, neither his present petition nor his filing in state court seeking transcripts from the hearing was timely under § 2244.

         In “rare and exceptional circumstances, ” the one-year limitations period may be equitably tolled. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Equitable tolling applies only when a prisoner has “diligently” pursued his federal habeas claims. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). In his objections to the R&R, Brooks argues that the state “played a major role in causing [him] to miss his deadline.” Doc. #16 at 2. Presumably, Brooks contends that because it took the state courts years to reconstruct the record of his guilty plea hearing, he is entitled to equitable tolling. However, Brooks does not explain how the respondents' actions caused him to wait until May 2011 to initially seek the transcripts from his state court proceeding. Accordingly, Brooks' objection that the respondents caused his delay is without merit.

         Brooks also contends that his pro se status entitles him to equitable tolling. However, Brooks' pro se status, lack of legal training, and unfamiliarity with the law “are insufficient reasons to equitably toll the AEDPA statute of limitations.” United States v. Petty, 530 F.3d 361, 366 (5th Cir. 2008). Thus, Brooks' objection regarding is pro se status is also without merit.[3]

         Similarly, Brooks' objection that he is serving an illegal sentence is without merit because he offers no explanation as to why he could not assert his illegal sentence claim before ...


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