Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burgess v. Hall

United States District Court, S.D. Mississippi, Northern Division

January 14, 2019

Y MARK BURGESS PETITIONER
v.
PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS RESPONDENT

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is the Petition under 28 U.S.C. § 2254[1] for a Writ of Habeas Corpus by a Person in State Custody, filed by Petitioner Casey Mark Burgess. The Petition challenges Burgess' 2013 conviction for attempted kidnapping and aggravated assault. Respondent Pelicia Hall has filed a Motion to Dismiss (ECF No. 5), alleging that Burgess' Petition is barred by the one-year statute of limitations in 28 U.S.C. § 2244(d). Having considered the submissions of the parties, the record, and relevant legal authority, the undersigned United States Magistrate Judge concludes that Burgess' Petition is barred by the one-year statute of limitations and recommends that Respondent's Motion to Dismiss be granted and Petitioner's request for relief pursuant to 28 U.S.C. § 2254 be denied.

         I. BACKGROUND

         Burgess is a postconviction inmate in the custody of the Mississippi Department of Corrections. After a jury trial in the Circuit Court of Rankin County, Mississippi, Burgess was convicted of attempted kidnapping and aggravated assault on June 19, 2013. He was sentenced to ten years for attempted kidnapping and twenty years for aggravated assault, with sentences to run concurrently to each other, but consecutively to his prior sentences for sexual battery.[2] Burgess appealed, but the Mississippi Court of Appeals affirmed his conviction. Burgess v. State, 210 So.3d 569 (Miss. Ct. App. 2016).

         Burgess raised five issues during his state appeal: (1) whether evidence of his prior convictions for sexual battery should have been excluded and whether he should have been allowed to testify about his intent to appeal those convictions; (2) whether the trial court should have granted his motion for a mistrial after an officer testified that Burgess had been interviewed about an assault on his wife; (3) whether the trial court should have admitted Burgess' cellphone records; (4) whether the trial court should have refused to give an “‘acquit first' lesser-included-offense instruction;” and (5) whether he was denied his right to a fair and impartial jury when the trial court refused to strike a juror for cause, resulting in Burgess' use of his final peremptory challenge. Burgess, 210 So.3d at 574-78.

         The Mississippi Court of Appeals found each of these issues to be without merit, affirmed his conviction, and denied his Motion for Rehearing. The Mississippi Supreme Court denied Burgess' Petition for Writ of Certiorari on February 9, 2017, and Burgess did not file a petition before the United States Supreme Court (ECF Nos. 1, 5, & 8).

         On May 31, 2018, Burgess filed the instant 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus, in which he raises five grounds for relief: (1) the trial court improperly applied Mississippi Rule of Evidence 609 in admitting evidence of his prior convictions and refusing to allow Burgess to testify that he intended to appeal those convictions; (2) the trial court should have granted his motion for a mistrial after a law enforcement officer testified that Burgess had been interviewed about an assault on his wife, as the limiting instruction did not cure the prejudice; (3) his phone records should have been admitted to show that he was not merely loitering in the area, particularly because the trial judge gave no reason for refusing to admit them; (4) the State's acquit first instruction should not have been given over his objection; and (5) the trial court improperly denied his for cause challenge of a venire member, thus requiring him to use his final peremptory challenge (ECF No. 1).

         Respondent filed a Motion to Dismiss (ECF No. 5) on July 19, 2018, alleging that Burgess' Petition for Writ of Habeas Corpus is barred by the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), codified at 28 U.S.C. § 2244(d). Respondent maintains that Burgess' “conviction and sentence became final on Wednesday, May 10, 2017, which is ninety (90) days after his Petition for Writ of Certiorari was denied on February 9, 2017 by the Mississippi Supreme Court.” Therefore, because Burgess did not file this Petition until May 31, 2018 and because he did not present any circumstances warranting equitable tolling, Respondent argues that his Petition must be dismissed. In response (ECF No. 8), Burgess argues that under Mississippi law, the judgment did not become final until ninety days after the Mississippi Supreme Court issued its mandate on March 2, 2017. Therefore, he argues that his Petition was not due until May 31, 2018. In the alternative, he argues that the Court “should consider this matter subject to equitable tolling principles.” He does not provide any additional argument in support of his position on tolling. In reply (ECF No. 9), Respondent argues that the finality of a conviction under state law has no effect on finality under 28 U.S.C. § 2244(d). Additionally, Respondent argues that Burgess has not demonstrated any rare and exceptional circumstances warranting equitable tolling.

         II. DISCUSSION A. Standard of Review

         Before considering the merits of a petition under 28 U.S.C. § 2254 for a writ of habeas corpus, the Court must first determine if all procedural steps necessary to preserve each issue for federal review have been taken. The first consideration is whether the petition was timely filed:

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 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.