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Green v. Banks

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

January 28, 2019

JESS LEE GREEN, PETITIONER
v.
JACQUELYN BANKS, RESPONDENT

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          LINDA R. ANDERSON UNITED STATES MAGISTRATE JUDGE.

         Petitioner Jess Green filed a petition for writ of habeas corpus relief on May 29, 2018. Respondent Jacquelyn Banks has filed an Answer asserting that the petition is time-barred pursuant to 28 U.S.C. § 2244(d) under the Antiterrorism and Effective Death Penalty Act of 1996. Alternatively, Respondent argues that Petitioner's claims are unexhausted. As a thorough review of the record supports the Respondent's contentions that the petition is untimely, the Court recommends that the petition be dismissed on this basis.

         On November 10, 2008, Green was sentenced in the Circuit Court of Jackson County, Mississippi, pursuant to a guilty plea in Cause No. 2007-11, 197(3), on two counts of kidnapping, two counts of sexual battery, and one count of armed robbery of a woman and her sixth-month old daughter. That same day, he was also sentenced pursuant to a guilty plea to one count of kidnapping, one count of armed robbery, and one count of attempted sexual battery of another woman in Cause No. 2007-11, 198(3). He was sentenced to serve a term of 30 years on each count, in the custody of the Mississippi Department of Corrections, with the sentences ordered to run concurrently.[1]

         On July 27, 2015, nearly seven years later, Green filed a motion for post-conviction collateral relief (signed July 22, 2015) in Jackson County Circuit Court challenging his conviction and sentence in Cause No. 2007 - 11, 197(3).[2] The circuit court denied the motion on June 30, 2016, with the exception of one claim, and dismissed the remaining claim on July 25, 2016, after considering additional briefing from the State. The Mississippi Court of Appeals affirmed the denial on September 19, 2017. Green v. State, 242 So.3d 176 (Miss. Ct. App. 2017) reh'g denied, February 6, 2018, cert. denied, May 10, 2018. On May 29, 2018, Green filed the instant petition seeking federal habeas corpus relief challenging his conviction in Cause No. 2007-11, 197(3). That same day, he also filed a federal petition seeking habeas corpus relief from his conviction in Cause No. 2007-11, 198(3). That petition was dismissed on November 26, 2018. Green v. Banks, No. 1:18CV181 LG-MTP (S.D.Miss. May 29, 2018).

         The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations on state prisoners filing a federal habeas petition. Under 28 U.S.C. § 2244(d)(1), AEDPA provides that the statute of limitations 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 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.
(d)(1)(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 subsection.

28 U.S.C. § 2244(d)(1) and (2). Thus, unless the narrow exceptions of § 2244(d)(1)(B)-(D) apply, a federal habeas petition must be filed within one year of the final judgment of the defendant's conviction, subject to tolling for the period when a properly filed motion for post-conviction relief is pending in state court. See Madden v. Thaler, 521 Fed.Appx. 316 (5th Cir. 2013). AEDPA's statute of limitations period may also be equitably tolled if a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations and citations omitted); see also Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (equitable tolling may apply to extend the one-year statute of limitations period, but only in rare and exceptional circumstances).

         Mississippi law prohibits prisoners who plead guilty from directly appealing to the Mississippi Supreme Court.[3] Green's conviction therefore became final not later than November 10, 2008, the date his sentencing order was filed. To toll the statute of limitations, he was required to file a motion for post-conviction collateral relief in state court on or before November 10, 2009. However, because he did not file his motion for post-conviction relief prior to that date, AEDPA's one-year statute of limitations ran uninterrupted. See Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999) (expired limitations period cannot be revived by filing a state habeas petition). Absent statutory or equitable tolling, his federal habeas petition filed on May 29, 2018, is untimely.

         Green does not deny that his petition is untimely. He argues that he is entitled to additional tolling due to mental incompetency, inadequate access to legal materials, diligence, and his actual innocence. Even if the Court were to accept Green's contention that his ability to pursue habeas relief was impeded by these factors, he has not established that these factors, either alone or in combination, were the cause of his delay rather than his lack of diligence.

         First, the only support Green provides for his contention that his mental impairments hindered his ability to timely file his federal habeas petition are excerpts from his state court motion for post-conviction relief. Robinson v. Johnson, No. 99B40291, 2000 WL 821450, at *1 (5th Cir. May 31, 2000) (per curiam) (unpublished) (“Robinson was clearly not prevented by his mental state from seeking state post-conviction remedies.”). Therein, Green asserts that because he required ...


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