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Gibbs v. Hood

United States District Court, N.D. Mississippi, Oxford Division

March 4, 2019

HENRY GIBBS, JR. PETITIONER
v.
WARDEN LADNER JIM HOOD, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on the pro se petition of Henry Gibb, Jr. for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as untimely filed under 28 U.S.C. § 2244(d)(2). Mr. Gibbs has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the instant petition for a writ of habeas corpus will be dismissed as untimely filed.

         Facts and Procedural Posture

         On April 29, 2015, Henry Gibbs, Jr. pled guilty to armed robbery. See Exhibit A[1](Petition to Enter a Guilty Plea, Washington County Circuit Court, Cause No. 2010-0016).[2] On the same day, the trial court entered its Sentencing Order, which was filed on May 5, 2015, and sentenced Gibbs “to serve a term of thirteen (13) years, such time shall be served as eight years in the custody of the Mississippi Department of Corrections, followed by five years Post-Release Supervision[.]” Exhibit C (Sentencing Order and guilty plea transcript, Washington County Circuit Court, Cause No. 2010-0016).

         Mr. Gibbs attempted to appeal his guilty plea on May 22, 2015; however, on August 18, 2015, the Mississippi Court of Appeals dismissed the appeal for want of jurisdiction, noting that “challenges to guilty pleas must be made through motions for post-conviction relief in the trial court.” See Exhibit D (citing Miss. Code Ann. § 99-35-101). Mr. Gibbs then filed a petition for a writ of habeas corpus in this court on September 21, 2015, which was dismissed on April 4, 2016, for failure to exhaust his state court remedies. See Exhibit E (Docket and Order of Dismissal, No. 4:15-cv-00131-DMB-DAS (N.D. Miss, April 4, 2016)).

         Gibbs then filed a Motion for Post-Conviction Collateral Relief (the PCR motion) in the Circuit Court of Washington County, Mississippi, which he signed on May 10, 2016, and the court stamped “filed” on May 12, 2016.[3] See Exhibit F. The Circuit Court of Washington County, Mississippi denied Mr. Gibbs' PCR motion on December 1, 2016, finding that he “failed to state a valid claim for relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act.” Exhibit G. Gibbs appealed, and the Mississippi Court of Appeals affirmed the denial of his PCR motion, finding that “[n]one of Gibbs's claims are grounds for relief under Miss. Code Ann. § 99-39-5.” Exhibit H (Gibbs v. State, 248 So.3d 874 (Miss. Ct. App. 2018), reh'g denied April 24, 2018, cert. denied July 19, 2018).

         One-Year Limitations Period

         Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:

(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 the 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 postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward ...

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