United States District Court, S.D. Mississippi, Northern Division
QUINCY M. FOX PETITIONER
PELICIA HALL RESPONDENT
REPORT AND RECOMMENDATION
C. GARGIULO UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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).
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.
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.
Fox's Petition is Time Barred
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