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Moore v. Mills

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

January 15, 2019

ADRIAN O. MOORE, # 192273 PETITIONER
v.
WARDEN ANDREW MILLS RESPONDENT

          REPORT AND RECOMMENDATION

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Respondent Warden Andrew Mills's Motion to Dismiss [10]. Thereafter, Petitioner made numerous filings. See [12], [13], [14], [15], [16], [17], [18], [21], [22], [23], [24], [25], [26], [27], [31], [32], [33], [34], [35], [37]. The Respondent has, in turn, filed responses to many of Petitioner's filings. See [28], [29], [30], [36]. Respondent argues that Moore's petition, filed pursuant to 28 U.S.C. § 2254, should be dismissed because it is untimely, or, alternatively, Moore has failed to exhaust state court remedies. For the reasons explained below, the undersigned recommends that the Motion to Dismiss be granted, and this action be dismissed without prejudice.

         FACTS AND PROCEDURAL HISTORY

         In his petition, Moore challenges his convictions of murder and aggravated assault in the Circuit Court of Jackson County, Mississippi. [10-1]. At trial, the surviving victim identified Moore as the person who had shot him and his half-brother, who died from his wounds. [11-4] at 50-55; Moore v. State, 204 So.3d 339, 340-341 (Miss. Ct. App. 2016). On July 25, 2014, the trial court sentenced Moore to life in prison on the murder conviction and twenty (20) years on the aggravated assault conviction, with the sentences to run consecutively to one another. Id. at 2.

         Moore appealed his convictions and sentences to the Mississippi Supreme Court, raising the following two issues:

1. Whether the trial court erred in denying the defense's motion for a mistrial after the jury indicated it was deadlocked; and
2. Whether the trial court erred when it refused to allow the defense to make a record of testimony that the trial court ruled as inadmissible.

Moore, 204 So.3d at 341, 343.

         On March 8, 2016, the Mississippi Court of Appeals affirmed. See Moore, 204 So.3d at 345. Thereafter, the Mississippi Court of Appeals denied rehearing on August 9, 2016, and the Mississippi Supreme Court denied Moore's petition for writ of certiorari on October 27, 2016. Id. Moore's convictions became final on January 25, 2017, ninety (90) days after the Mississippi Supreme Court denied certiorari review. Roberts v. Cockrell, 319 F.3d 690, 693-94 (5th Cir. 2003). Moore claims that he appealed his conviction to the United States Supreme Court, [1] at 12-13, and he received no response, but he provides no evidence to support his claim.[1]Accordingly, Moore's federal petition for habeas corpus relief was due in this Court on or before January 25, 2018, unless Moore filed a “properly filed” application for post-conviction relief under 28 U.S.C. § 2244(d)(2) to toll the one year federal statute of limitations.

         Prior to and after his convictions were affirmed, Moore made several filings related to his convictions in the Mississippi Supreme Court and Court of Appeals, which were all denied. Moore admits that he has yet to pursue post-conviction relief in the state court system on the grounds he has raised in his habeas petition. [1] at 6-11.

         Moore's signed, but undated, petition was post-marked on May 1, 2018, and filed in this Court on May 7, 2018. [1-1]. In this action, Moore raises the following grounds for relief:

1. Violation of 4th U.S.C.A. in issuance of warrant and collection of evidence. Invalid warrant.
2. Ineffective assistance of counsel by misconduct of prosecution and deplural [sic] ...

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