United States District Court, N.D. Mississippi, Oxford Division
HENRY GIBBS, JR. PETITIONER
WARDEN LADNER JIM HOOD, ET AL. RESPONDENTS
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.
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.
and Procedural Posture
April 29, 2015, Henry Gibbs, Jr. pled guilty to armed
robbery. See Exhibit A(Petition to Enter a Guilty Plea,
Washington County Circuit Court, Cause No.
2010-0016). 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).
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)).
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. 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).
in this case is governed by 28 U.S.C. § 2244(d), which
(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 ...