United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OVERRULING
PETITIONER'S  OBJECTIONS; ADOPTING MAGISTRATE
JUDGE'S  REPORT AND RECOMMENDATION; GRANTING
RESPONDENT'S  MOTION TO DISMISS; AND DISMISSING
PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Jess Lee Green's
Objections  to the Report and Recommendation  of
United States Magistrate Judge Linda R. Anderson and
Respondent Jacquelyn Banks' Motion to Dismiss . After
thoroughly reviewing Petitioner's Objections , the
Magistrate Judge's Report and Recommendation ,
Respondent's Motion to Dismiss , related pleadings,
the record as a whole, and relevant legal authority, the
Court concludes that Petitioner's Objections  should
be overruled, that the Magistrate Judge's Report and
Recommendation  should be adopted as the finding of the
Court, and that Respondent's Motion to Dismiss  should
be granted. Petitioner Jess Lee Green's 28 U.S.C. §
2254 Petition for Writ of Habeas Corpus should be dismissed
State court proceedings
August 4, 2008, Petitioner Jess Lee Green
(“Petitioner” or “Green”) entered
guilty pleas on charges filed against him in two separate
criminal cases in the Circuit Court of Jackson County,
Mississippi. See Order [6-1] at 1-2; Green v.
State, No. 2017-CP-01285-COA, 2019 WL 667866 (Miss. Ct.
App. Feb. 19, 2019); see also Green v. State, 242
So.3d 176, 178 (Miss. Ct. App. 2017), reh'g
denied (Feb. 6, 2018), cert. denied, 246 So.3d
68 (Miss. 2018). On each of the five counts in the first
case, number 2007-11, 197(3), and on each of the three counts
in the second case, number 2007-11, 198(3), the trial court
sentenced Petitioner to serve a term of imprisonment of
thirty (30) years in the custody of the Mississippi
Department of Corrections, to be served concurrently with
each other and without the possibility of parole or early
release. Order [6-1] at 1-2. The Sentencing Order was filed
November 10, 2008. Id. at 1.
about July 27, 2015, nearly seven years after he entered his
guilty pleas, Petitioner filed in the Jackson County Circuit
Court a petition for post-conviction collateral relief
pertaining to both criminal cases. See R. [5-1] at
9-38.On June 30, 2016, the State court entered
an Order dismissing Green's Petition in part and
requiring that the State provide the Court “with
information and/or documentation as to the nature of the
‘trace evidence' attempted to be collected [in one
of the] assault case[s] . . . .” R. [5-3] at 76. After
the State responded indicating that there was no such
evidence actually collected, see Id. at 77, the
State court entered a Final Judgment of Dismissal on July 8,
2016, denying the remaining claim asserted by Green,
id. at 88. Petitioner appealed the dismissal, and
the Mississippi Court of Appeals affirmed. The Court of
Appeals denied rehearing on February 6, 2018, and the
Mississippi Supreme Court denied Petitioner's petition
for writ of certiorari on May 10, 2018. Green v.
State, 242 So.3d 176, 181 (Miss. Ct. App. 2017),
reh'g denied (Feb. 6, 2018), cert.
denied, 246 So.3d 68 (Miss. 2018).
Section 2254 Petition
22, 2018, Petitioner signed and placed a Petition for Writ of
Habeas Corpus  in the prison mailing system, which was
received by the Clerk of Court and filed on May 29, 2018.
See Pet.  at 1-15. The Petition in this case
relates to the five charges to which Petitioner pled guilty
in the first of his criminal cases, number 2007-11, 197(3).
filed a Motion  to Dismiss, arguing that the Petition was
not timely filed under 28 U.S.C. § 2244(d), such that it
should be dismissed with prejudice. Mot.  at 1-7.
Alternatively, Respondent asserted that the Court should
dismiss the Petition for failure to exhaust available State
court remedies. Id. at 7-9.
Magistrate Judge entered a Report and Recommendation  on
January 28, 2019, concluding that the Petition was
time-barred by 28 U.S.C. § 2244(d)(1)(A), and that
Petitioner had not presented any evidence warranting the
application of statutory or equitable tolling. See
R. & R.  at 8. The Magistrate Judge recommended that
the Petition be dismissed with prejudice. Id. at
has submitted Objections  to the Report and
Recommendation , arguing that he is entitled to equitable
tolling of the statute of limitations, such that his Petition
should be deemed timely. Objs.  at 1-4. Respondent has
filed a Response  to Petitioner's Objections ,
contending that the Petition “was filed almost eight
and a half (8 ½) years too late, ” Resp.  at
1, and that Petitioner “provides no ‘rare and
exceptional' circumstance to warrant equitable tolling,
” id. at 7. Respondent maintains that
Petitioner's Objections  should be overruled, that
the Magistrate Judge's Report and Recommendation 
should be adopted, and that the Petition should be dismissed
with prejudice. Id.
Standard of review
Petitioner has filed written Objections to the Magistrate
Judge's Report and Recommendation , the Court
“make[s] a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. §
636(b)(1); see also Rule 8(b) of Rules Governing
Section 2254 Cases in the United States District Courts.
Under a de novo review, the district court makes its
“own determination based upon the record and
unrestrained by the findings and conclusions of the
magistrate.” United States v. Wilson, 864 F.2d
1219, 1222 (5th Cir. 1989); see also, e.g., Lambert v.
Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013 WL 786356, *1
(S.D.Miss. Mar. 1, 2013) (“Such review means that this
Court will examine the entire record and will make an