United States District Court, N.D. Mississippi, Aberdeen Division
Sharion Aycock U.S. DISTRICT JUDGE
matter comes before the court on the pro se petition
of Jabariakias Cunningham 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), and the petitioner has responded. 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.
and Procedural Posture
Cunningham was convicted in Lowndes County Circuit Court for
armed robbery (count one) and aggravated assault (count two).
See Exhibit A (Orders of Conviction and Sentencing
Orders in Lowndes County Circuit Court Cause No.
11-173-CR1H). On March 2, 2012, the trial court sentenced him
as a habitual offender to two (2) consecutive twenty-year
sentences in the custody of the Mississippi Department of
Corrections (“MDOC”). Id. Mr.
Cunningham's convictions and sentences were affirmed by
the Mississippi Court of Appeals. Exhibit B, Cunningham
v. State, 143 So.3d 606 (Miss. Ct. App. 2013),
reh'g denied April 15, 2014, cert.
denied July 31, 2014 (No. 2012-CT-00418-COA). He did not
seek a writ of certiorari in the Supreme Court.
10, 2015, Mr. Cunningham signed an application for
post-conviction review, which he filed in the Mississippi
Supreme Court. See Exhibit C (Application in Cause
No. 2015-M-01219). The Mississippi Supreme Court denied the
application on January 28, 2016.
instant federal habeas corpus petition bears a
signature date of April 14, 2016. ECF doc. 1, p. 10. However,
the envelope accompanying the petition was post-marked on
October 13, 2017, and was stamped as “received”
in this Court on October 16, 2017. Id. at pgs. 1,
11. Thus, nearly 18 months transpired between the date Mr.
Cunningham purportedly signed the petition and the date it
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 ...