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Lafoon v. State

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

December 11, 2018

KEP LAFOON PETITIONER
v.
STATE OF MISSISSIPPI RESPONDENT

          MEMORANDUM OPINION

          NEAL B. BIGGERS SENIOR U.S. DISTRICT JUDGE.

         This matter comes before the court on the pro se petition of Kep Lafoon 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). Mr. Lafoon has responded to the motion, and 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 will be dismissed as untimely filed.

         Facts and Procedural Posture

         Kep Lafoon pled guilty to murder in the Circuit Court of Marshall County, Mississippi. See Exhibit A[1] (guilty plea petition and transcript of plea and sentencing). He was sentenced on October 16, 2002, to a term of life without parole in the custody of the Mississippi Department of Corrections as a habitual offender under Miss. Code Ann. § 99-19-83. See Exhibit B. That code section reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.

Miss. Code Ann. § 99-19-83. Section 99-19-83 is the more punitive of Mississippi's habitual offender statutes, as the only available sentence under that section is imprisonment for life without the possibility of parole.

         On November 1, 2002, the trial court entered an “Amended Judgment of Sentence on Guilty Plea” to properly reflect Lafoon's sentence as a habitual sentence under Miss. Code Ann. § 99-19-81. See Exhibit C. That code section is the less punitive of Mississippi's habitual offender statutes, and reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81. Under this code section, the punishment is the maximum term of imprisonment for the crime of conviction, without the possibility of parole. There is no practical difference in Mr. Lafoon's punishment, regardless of which habitual offender statute was used. Mr He was sentenced to life imprisonment for murder, and both habitual offender statutes require that the sentence imposed be without the possibility of parole. Under either habitual offender statute, Mr. Lafoon would serve a term of life without parole.

         On June 18, 2013, over ten years after entry of the amended judgment, Mr. Lafoon signed a Motion for Post-Conviction Relief which was stamped as “filed” in the Marshall County Circuit Court on June 20, 2013. See Exhibit D. On September 16, 2013, the circuit court denied the motion as untimely filed and, alternatively, without merit. See Exhibit E. Mr. Lafoon appealed the trial court's decision, and, on October 7, 2014, the Mississippi Court of Appeals affirmed. Exhibit F. See Lafoon v. State, 164 So.3d 494 (Miss. Ct. App. 2014), reh'g denied, February 17, 2015, cert. denied, May 21, 2015 (Cause No. 2013-CP-01630). The mandate of the state appellate court issued on June 11, 2015. See Exhibit G.

         On August 21, 2017, Lafoon sought post-conviction collateral relief when he signed a “Motion to Vacate, Set Aside or Correct the Judgment of Sentence; Habitual Portion” and brief in support that was stamped as “filed” on August 25, 2017, in the Marshall County Circuit Court. See Exhibit H. On December 4, 2017, the motion to vacate was dismissed as both untimely and successive, and alternatively, without merit. See Exhibit I. Mr. Lafoon appealed the lower court's denial of relief, and the Mississippi Court of Appeals affirmed the lower court's decision on November 20, 2018, in Cause No. 2017-CP-01724. See Exhibit J. Mr. Lafoon filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254 on March 8, 2018. Doc. 1.

         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 ...

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