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Cunningham v. Bradley

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

January 14, 2019

JABARIAKIAS CUNNINGHAM PETITIONER
v.
WARDEN JODY BRADLEY, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          Sharion Aycock U.S. DISTRICT JUDGE

         This 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.

         Facts and Procedural Posture

         Jabariakias Cunningham was convicted in Lowndes County Circuit Court for armed robbery (count one) and aggravated assault (count two). See Exhibit A[1] (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.

         On June 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.

         The 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 was post-marked.

         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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