United States District Court, N.D. Mississippi, Oxford Division
Sharion Aycock U.S. DISTRICT JUDGE
matter comes before the court on the pro se petition
of James McCoy 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. McCoy has responded to the motion, and the State has
replied. 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
McCoy pled guilty to two counts of armed robbery on November
14, 2007, and was sentenced to concurrent terms of
thirty years on each count with five years of each count
suspended and five years post-release supervision.
See Exhibit A (Order (Incarceration and Post Release
Supervision)), Union County Circuit Court, Cause No. UK
2006-171-A). Mr. McCoy filed a Motion for Post Conviction
Relief in the trial court on February 9, 2009, which the
trial court denied. See Exhibit B (Order Denying
Relief Requested, Union County Circuit Court, Cause No. UK
2006-171-A). Mr. McCoy appealed the denial, and the
Mississippi Court of Appeals reversed the trial court's
denial of McCoy's Motion for Post-Conviction Relief,
remanding the matter for an evidentiary hearing regarding
whether he relied on erroneous information about his
eligibility for parole and whether trial counsel was
ineffective for erroneously advising him on the matter.
See Exhibit C; McCoy v. State, 47 So.3d
1197, 1199, (¶¶ 7-10) (Miss. Ct. App. 2010).
trial court granted Mr. McCoy's Motion for
Post-Conviction Relief, set aside his guilty plea, and set
trial for November 15, 2011. See Exhibit D (Order
Granting Post-Conviction Relief and Order of Setting, Union
County Circuit Court, Cause No. UK 2006-171-A). A jury found
him guilty on two counts of armed robbery. See
Exhibit E (Jury Verdict, Union County Circuit Court, Cause
No. UK 2006-171-A). The trial court sentenced him to serve two
(2) consecutive thirty-five (35) year sentences,
with thirty (30) years to serve on each and five (5) years
suspended on each - a total of 60 years' incarceration
without the possibility of parole. See Exhibit F
(Sentencing Order, Union County Circuit Court, Cause No. UK
2006-171-A). The trial court also ordered that McCoy be
placed on five (5) years post-release supervision upon his
release and must pay all court costs, as well as restitution
to the victims in the amount of $4, 600.00. Id. Mr.
McCoy appealed, and the Mississippi Supreme Court affirmed
his convictions and sentences on September 18, 2014.
See Exhibit G; McCoy V. State, 147 So.3d
333 (Miss. 2014). He did not seek rehearing. Id.
According to the docket of the United States Supreme Court,
available on that Court's website, Mr. McCoy did not seek
a writ of certiorari in the Supreme Court.
October 11, 2017, he filed an Application for Leave to
Proceed in the Trial Court and Motion for Post-Conviction
Relief that was stamped “Filed” in the
Mississippi Supreme Court on October 16, 2017. See
Exhibit H. The Mississippi Supreme Court denied the
Application and Motion for Post-Conviction Relief on January
10, 2018, holding the grounds to be untimely, barred by
res judicata, waived, or lacking arguable merit.
See Exhibit I.
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 ...