United States District Court, N.D. Mississippi, Aberdeen Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
matter comes before the court on the pro se petition
of Michael Ivey for a writ of habeas corpus under 28
U.S.C. § 2254. The court has reviewed the petition and
finds that, to the extent that he seeks to challenge his
state conviction and sentence, it should be dismissed as
successive. It appears that Mr. Ivy may seek an order from
this court directing state courts to rule a certain way under
state statutory law. To the extent that he seeks such an
order, the court does not have the authority to issue such an
Corpus Relief Under 28 U.S.C. §
writ of habeas corpus, a challenge to the legal
authority under which a person may be detained, is ancient.
Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass,
Historical Aspects of Habeas Corpus, 9 St. John's L.Rev.
55 (1934). It is "perhaps the most important writ known
to the constitutional law of England," Secretary of
State for Home Affairs v. O 'Brien, A.C. 603, 609
(1923), and it is equally significant in the United States.
Article I, § 9, of the Constitution ensures that the
right of the writ of habeas corpus shall not be
suspended, except when, in the case of rebellion or invasion,
public safety may require it. Habeas Corpus, 20 Fed.
Prac. & Proc. Deskbook § 56. Its use by the federal
courts was authorized in Sectionl4 of the Judiciary Act of
1789. Habeas corpus principles developed
over time in both English and American common law have since
The statutory provisions on habeas corpus appear as
sections 2241 to 2255 of the 1948 Judicial Code. The
recodification of that year set out important procedural
limitations and additional procedural changes were added in
1966. The scope of the writ, insofar as the statutory
language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism
and Effective Death Penalty Act, placing severe restrictions
on the issuance of the writ for state prisoners and setting
out special, new habeas corpus procedures for
capital cases. The changes made by the 1996 legislation are
the end product of decades of debate about habeas
Id. Under 28 U.S.C. § 2254, a federal court may
issue the writ when a person is held in violation of the
federal Constitution or laws, permitting a federal
court to order the discharge of any person held by
astate in violation of the supreme law of the land.
Frankv. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582,
588, 59L.Ed. 969(1915).
and Procedural Posture
court denied Mr. Ivy's first petition for a writ of
habeas corpus as untimely filed on June 22, 2009,
Ivy was convicted of one count of sexual battery and one
count of fondling in Lowndes County Circuit Court. On
December 1, 2005, he was sentenced as an habitual offender to
serve life in prison on the sexual battery charge and 15
years on the fondling charge. The Mississippi Supreme Court
affirmed the convictions and sentences on February 22, 2007.
With the addition of 90 days that is permitted for the filing
of a petition for writ of certiorari with United States
Supreme Court, the judgment became final on May 23, 2007.
Ivy's motion for postconviction relief was signed on
February 5, 2008 and filed with the Mississippi Supreme Court
on February 8, 2008. The motion was denied on March 19, 2008.
With the tolling of the running of the statute of limitations
for the period of pendency of the state postconviction
motion, Ivy's habeas petition was due to be filed in this
court on or before July 7, 2008.
The petition was stamped filed with this court on September
15, 2008. It was not dated. Even allowing a full week for
mailing through the prison mailing system, the petition was
not timely filed.
Ivy v. Banks, etal, 1:08CV227-GHD-JAD (N.D. Miss.
filed the instant petition for a writ of habeas
corpus on August 15, 2007, stating as his sole ground
for relief: "Whether the verdict was against the
overwhelming weight of the evidence." Below that ground
for relief, however, Mr. Ivy states, "Petitioner is not
challenging the above issue (ground)." The remaining
grounds are, however, blank. In his memorandum brief in
support of his position, Mr. Ivy argues that he "should
be granted leave to proceed in the trial court to file for
post-conviction collateral relief." Doc. 2 at 6. Mr. Ivy
attached documents showing that the Mssissippi Supreme Court
dismissed the application, noting that it was his third
attempt to obtain such relief and that it was barred for a
variety of reasons, including: (1) it was second or
successive, (2) the issues could have been raised at trial or
on direct appeal, and (3) he had not presented an arguable
basis for his claims. Id. at 14. Mr. Ivy seeks from
this court the equivalent of a writ of mandamus, ordering the
Mssissippi Supreme Court to grant his application to proceed
in the trial court (the first step of the state process to
obtain post-conviction relief).
Ivy's petition is not a model of clarity, as he framed
his initial ground for habeas corpus relief as a
challenge to the sufficiency of the evidence to support the
verdict. In the next sentence, however, he stated that he did
not seek to challenge the sufficiency of the evidence. Only
in his brief does he request an order from this court along
the lines of a writ of mandamus. To the extent that Mr. Ivy
actually seeks to challenge the sufficiency of the evidence
to support the verdict (despite his disclaimer), then his
petition must be dismissed as second or successive. As set
forth above, he has filed a previous petition for a writ of
habeas corpus with this court, which was dismissed
as untimely filed. The Antiterrorism and Effective Death
Penalty Act requires that before a district court files a
second or successive petition, "the applicant shall move
in the appropriate court of appeals for an order authorizing
the district court to ...