United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent's Motion to
Dismiss , to which Petitioner Frank Daughtery has failed
to respond. Respondent argues that the petition, filed
pursuant to 28 U.S.C. § 2254, should be dismissed
because it is untimely, or, alternatively, because Daughtery
has failed to exhaust state court remedies, and federal
review of his claims is now barred. For the reasons explained
below, the undersigned recommends that the Motion to Dismiss
be granted, and this case be dismissed.
action, Daughtery challenges his plea and sentences imposed
by the Circuit Court of Walthall County for two counts of
unlawful touching of a child. Petitioner originally pleaded
guilty and was sentenced by the court on August 17, 2009 to a
term of fifteen (15) years with five (5) years suspended on
Count I, to run consecutively to a term of fifteen (15) years
imposed on Count II, to be served in the custody of the
Mississippi Department of Corrections.
State asserts that by statute, there is no direct appeal from
a guilty plea, see Miss. Code Ann. § 99-35-101,
and that state court records indicate that no post-conviction
motions have been filed by Petitioner. The State argues that
the petition should be dismissed as untimely filed pursuant
to 28 U.S.C. § 2244(d). The State further submits that
this Court's review of Daughtery's claims is barred
by Sones v. Hargett, 61 F.3d 410 (5th Cir. 1995).
by the Antiterrorism and Effective Death Penalty Act of 1996
(''AEDPA''), § 2244(d) reads as follows:
(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 B
(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
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 post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d)(1996).
conviction became final on August 17, 2009, the date of his
guilty plea. See Roberts v. Cockrell, 319 F.3d 690
(5th Cir. 2003). There is no evidence that he made a
“properly filed” application for State
post-conviction or other collateral review under §
2244(d)(2). Accordingly, Daughtery's petition for a writ
of habeas corpus was due in this Court by August 17, 2010.
Instead, he filed his petition on November 15, 2017, over
seven (7) years after the August 17, 2010, deadline.
Accordingly, because Daughtery's petition is untimely
under 28 U.S.C. § 2244, the petition must be dismissed.
no state post-conviction relief would now be available to
Daughtery because the three-year limitations period for state
post-conviction relief has run. See Miss. Code Ann.
§ 99-39-5(2). Thus, Petitioner has technically exhausted
his state court remedies on these claims, see Sones,
61 F.3d at 415, and his claims would now be procedurally
barred in state court. A federal court may not review the
merits of a procedurally-barred claim, absent a showing
either of cause for the default and actual prejudice or that
failure to address the claim would result in a miscarriage of