United States District Court, S.D. Mississippi, Eastern Division
JERRY LYNN GILMORE, JR. PETITIONER
STATE OF MISSISSIPPI RESPONDENT
PROPOSED FINDINGS OF FACT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
the undersigned is Jerry Lynn Gilmore, Jr.'s petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc.
. On April 2, 2009, Gilmore pleaded guilty in Jones County
Circuit Court to the charge of selling cocaine. Doc. [13-2]
& [13-3]. The trial court sentenced Gilmore to serve a
30-year sentence, with 15 years served in custody of the
Mississippi Department of Corrections and 15 years suspended
upon successful completion of five years post-release
supervision and the Circuit Court Community Service Program.
Doc. [13-4]. Gilmore filed a motion for post-conviction
collateral relief on either March 25, 2016, or April 14,
2016. Doc. [13-5]. The Jones County Circuit Court denied the
motion on May 6, 2016, because it was untimely under Miss.
Code Ann. § 99-39-5. Doc. [13-6]. On June 3, 2016,
Gilmore filed a motion for out of time appeal, which the
Jones County Circuit Court also denied. Doc. [13-7].
filed the instant § 2254 petition on April 16, 2018,
challenging the underlying conviction and sentence.
Respondent filed a motion to dismiss on August 13, 2018,
asserting that Gilmore did not file his § 2254 petition
within one year of his conviction and sentence becoming
final. Accordingly, Respondent argues the petition is
untimely pursuant to the AEDPA's one-year limitation
period. Doc. . Respondent argues in the alternative that
Gilmore did not exhaust state court remedies. Id.
Gilmore has not filed a response in opposition to the motion
U.S.C. § 2244 of the AEDPA provides, in relevant part,
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 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
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
instant case, the trial court entered a sentencing order
dated April 2, 2009, with a file stamp date of April 3, 2009.
Doc. [13-4]. Under applicable Mississippi law, there is no
direct appeal from a guilty plea. Miss. Code Ann. §
99-35-101. Accordingly, for purposes of calculating the
AEDPA's one-year limitation period, Gilmore's
conviction and sentence became final on April 3, 2009.
See Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.
2003); Ott v. Johnson, 192 F.3d 510, 513
(5th Cir. 1999). Absent tolling, Gilmore's
§ 2254 petition would need to be filed by April 3, 2010,
to be timely. Gilmore did not file an application for post-
conviction relief in state court until March or April of
2016. See Doc. [13-5]. Thus, his untimely state
petition does not operate to toll the AEDPA's one-year
limitation period. There is no record of any earlier filed
filed the instant federal habeas petition on April 16, 2018,
approximately eight years beyond the deadline for filing a
timely §2254 petition. Gilmore has not filed a response
in opposition to Respondent's motion to dismiss. Thus, he
does not dispute the time line as presented in
Respondent's motion. Likewise, in his § 2254
petition, Gilmore does not argue that his petition is timely.
He merely argues that Miss. Code Ann. § 99-35-5
“permits filing after bar if sentence is
expired”. Doc.  at 16. Gilmore cites to a provision
of state law that has no bearing on the federal AEDPA's
definition of timeliness. Gilmore also argues that pursuant
to the 14th Amendment, there is no time bar on an
illegal conviction. Id. Again, Gilmore apparently
concedes that his petition is untimely but argues
unconvincingly that an illegal conviction should never be
barred by the AEDPA's one-year limitation. Accordingly,
unless Gilmore identifies some exception to the limitation
period, his petition is time-barred and should be dismissed
Supreme Court has recognized that, in appropriate cases, the
limitations period may be equitably tolled. Holland v.
Florida, 130 S.Ct. 2549, 2560-62 (2010). A petitioner is
entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing. Id. at 2562. Gilmore fails to allege
or argue any extraordinary circumstance that would justify
equitable tolling. See Melancon v. Kaylo, 259 F.3d
401, 408 (5th Cir. 2001). He does not allege or argue that he
pursued his rights diligently or that some extraordinary
circumstance prevented him from timely filing the petition.