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Fox v. Hall

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

January 31, 2019

QUINCY M. FOX PETITIONER
v.
PELICIA HALL RESPONDENT

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO UNITED STATES MAGISTRATE JUDGE

         BEFORE THE COURT is the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed by Petitioner Quincy M. Fox. (ECF No. 1). Respondent Pelicia Hall, Commissioner of the Mississippi Department of Corrections (MDOC), has filed a Motion to Dismiss Pursuant to 28 U.S.C. §2244(d) or, in the Alternative, for Failure to Exhaust (ECF No. 7), and a Supplement to Motion to Dismiss (ECF No. 12). Fox did not respond to the Motion to Dismiss. The undersigned issued an Order to Show Cause (ECF No. 9), requiring Fox to respond. Fox instead filed an Amended Complaint, without leave of Court. Having considered the submissions of the parties, the record, and relevant law, the undersigned United States Magistrate Judge concludes that Fox's Petition is time barred and procedurally defaulted.

         BACKGROUND

         Following a trial in the Circuit Court of Lauderdale County, Mississippi on May 28-30, 2013, a jury convicted Fox of two counts of kidnapping, one count of armed carjacking, and one count of armed robbery. Fox v. State, 151 So.3d 226, 227 (Miss.Ct.App. 2014). On August 8, 2013, Fox was sentenced as a habitual offender to life imprisonment within the custody of the Mississippi Department of Corrections for each count, to be served concurrently. Id. Fox's motions for new trial were denied. Fox appealed.

         The Mississippi Court of Appeals affirmed Fox's judgment of conviction and sentence on November 4, 2014. (ECF No. 7-3). Fox did not file a motion for a rehearing under Mississippi Rule of Appellate Procedure 40(a). He did not seek certiorari review before the Mississippi Supreme Court.

         Fox did not seek postconviction relief or habeas relief until July 2018. Fox filed a motion for postconviction relief on July 11, 2018, in the Mississippi Supreme Court, Cause No. 2018-M-00988. (ECF No. 7-5). Fox filed the instant 28 U.S.C. §2254 Petition in this Court in July 2018. He did not date the Petition. The postage on the envelope attached to Fox's Petition reflects that the Petition was mailed on June 13, 2018. (ECF No. 1-1). The Petition was stamped “filed” by the Clerk of Court on June 14, 2018. (ECF No. 1).[1]

         Respondent filed a Motion to Dismiss Pursuant to 28 U.S.C. §2244(d) or, in the Alternative, for Failure to Exhaust. Respondent maintained that Fox's Petition was filed over two and a half years past the statute of limitations. Respondent alternatively argued that Fox's Petition was subject to dismissal without prejudice due to Fox's pending motion for postconviction relief before the Mississippi Supreme Court. In her Supplement to Motion to Dismiss, Respondent advised that the Mississippi Supreme Court had denied Fox's motion for postconviction relief, making Fox's § 2254 Petition no longer subject to dismissal for failure to exhaust state court remedies. (ECF No. 12, at 2). Respondent urged, however, that all three claims in the Petition are now procedurally defaulted because the claims were found time-barred under Mississippi Code Section 99-39-5(2) by the Mississippi Supreme Court in Cause No. 2018-M-00988.

         In this action, Petitioner did not respond to the Motion to Dismiss or Supplement to Motion to Dismiss. An Order to Show Cause issued on November 1, 2018, requiring Fox to file a response to the Motion to Dismiss. (ECF No. 9). Fox was warned that failing to file a timely response subjected his case to dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b). Fox did not file a response to the Motion to Dismiss but instead filed an Amended Petition, without leave of Court, on November 19, 2018. Thus, Fox has provided no argument in response to Respondent's claim that the Petition is time-barred and procedurally defaulted.

         DISCUSSION

         A. Fox's Petition is Time Barred

         Before considering the merits of a petition under 28 U.S.C. § 2254 for 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:

(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 laws of the United States is removed, if the applicant was ...

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