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Prather v. Hogans

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

October 22, 2018

DAVID WAYNE PRATHER, PETITIONER
v.
WARDEN NORRIS HOGANS, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This matter comes before the court on the pro se petition of David Wayne Prather for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as untimely filed under 28 U.S.C. § 2244(d)(2). The petitioner has not responded to the motion, and the deadline to do so has expired. The matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the instant petition for a writ of habeas corpus dismissed as untimely filed.

         Facts and Procedural Posture

         David Wayne Prather is in the custody of the Mississippi Department of Corrections and is currently housed at the East Mississippi Correctional Facility in Meridian, Mississippi, after his conviction for attempted aggravated assault in Tippah County Circuit Court. He was indicted for attempted aggravated assault as a habitual offender under Miss. Code Ann. § 99-19-81. See Exhibit A[1] (Indictment in Tippah County Circuit Court Cause Number TK2012-095). On November 9, 2012, Prather signed a “Waiver of Arraignment and Entry of Plea, ” in which he offered an initial plea of not guilty. See Exhibit B. On November 29, 2012, Mr. Prather petitioned the Tippah County Circuit Court to accept his guilty plea to the charge of attempted aggravated assault. See Exhibit C (“Petition of Defendant for Court to Accept Plea”). On the same day, the court accepted Prather's guilty plea and sentenced Prather to serve a term of twenty years in the custody of the Mississippi Department of Corrections (“MDOC”). See Exhibit D (“Plea of Guilty and Judgment of the Court” and Transcript of Guilty Plea Hearing). The court further ordered Mr. Prather to pay court costs and restitution to the district attorney's office and to the victim. Id. In exchange for Prather's guilty plea, he was sentenced as a non-habitual offender. See Exhibit D (“Plea of Guilty and Judgment of the Court” and Transcript of Guilty Plea Hearing); see also Exhibit E (“Notice of Criminal Disposition”). By statute, a Mississippi criminal defendant may not pursue a direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101.

         Mr. Prather does not allege that he has filed any motions for post-conviction relief challenging his guilty plea and attempted aggravated assault conviction, and there is no record in the trial court or Mississippi appellate courts that he has done so.[2]

         One-Year Limitations Period

         Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:

(d)(1) 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. The limitation period shall run 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.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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