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McCoy v. Jenkins

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

January 14, 2019

JAMES MCCOY PETITIONER
v.
WARDEN LEPHER JENKINS, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          Sharion Aycock U.S. DISTRICT JUDGE

         This 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.

         Facts and Procedural Posture

         James 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[1] (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).

         The 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[2] 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.

         On 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.

         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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