United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT & RECOMMENDATION
M. BROWN UNITED STATES DISTRICT JUDGE
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.
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.
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.
Standard of Review
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Cir. 1996), superseded on other grounds by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)).
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.
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; (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
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,  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 §
“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.
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
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 ...