United States District Court, N.D. Mississippi, Greeville Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
matter comes before the court on the pro se petition
of Calvin Reed 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 replied, 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.
and Procedural Posture
January 18, 2006, a jury convicted Calvin Reed for robbery,
and he was sentenced as a habitual offender to serve a term
of life without parole in the custody of the Mississippi
Department of Corrections (MDOC). See Exhibit
(Jury Verdict and Judgment, Grenada County Circuit Court,
Cause No. 2005-0043-CR). Mr. Reed appealed, and the
Mississippi Court of Appeals affirmed his conviction and
sentence on May 22, 2007. See Exhibit B; Reed v.
State, 956 So.2d 1110 (Miss. Ct. App. 2007). Mr. Reed
did not seek rehearing or certiorari. Id.
On October 20, 2016, he tried to initiate a state proceeding
seeking post-conviction relief in the Grenada County Circuit
Court, Cause No. 2016-236-CVL, by filing a Motion for Records
and Transcripts. See Exhibit C (General Docket,
Motion and Order). The circuit court denied the motion.
Id. He filed the instant petition for a writ of
habeas corpus on February 12, 2018.
in this case is governed by 28 U.S.C. § 2244(d), which
(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 any period of limitation under this
28 U.S.C. § 2244(d)(1) and (2).
Reed's conviction and sentence became final on Tuesday,
June 5, 2007, fourteen days after his conviction was affirmed
by the Mississippi Court of Appeals (May 22, 2007 14 days).
Roberts v. Cockrell, 319 F.3d 690, 694
(5th Cir. 2003) (conviction becomes final for
habeas corpus purposes at the end of direct review
or upon expiration of the deadline for such review). Thus,
Mr. Reed's initial deadline to seek federal habeas
corpus relief became Thursday, June 5, 2008 (June 5,
2007 1 year). Mr. Reed did not properly file an application
for post-conviction relief as contemplated by 28 U.S.C.
§ 2244(d)(2) on or before that deadline, as his first
attempt to obtain such relief was on October 10, 2016, over
eight years after the habeas corpus limitations
period expired. Thus, he does not enjoy statutory tolling of
the limitations period. In addition, ...