United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE
Linson is a state prisoner who seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Respondents have filed a
motion to dismiss the petition as untimely. The undersigned
recommends that the motion be granted and the petition
dismissed with prejudice.
was convicted in the Circuit Court of Pearl River County,
Mississippi, of sale of a controlled substance. He was
sentenced as a second and subsequent offender and habitual
offender to 60 years without parole. The Mississippi Court of
Appeals affirmed Linson's conviction and sentence on May
26, 2009. Linson v. State, 9 So.3d 1210 (Miss. Ct.
App. 2009). Linson failed to file a petition for rehearing
and therefore was unable to seek further review in state
court. Linson's § 2254 petition was filed with this
court on or about January 4, 2019.
Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) imposes a one-year statute of limitation for
petitions for writs of habeas corpus under § 2254:
(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
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 post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this
28 U.S.C. § 2244(d). Because Linson ended his appeal
process by failing to file a motion for rehearing, his
conviction became final when his time for doing so expired.
28 U.S.C. § 2244(d)(1)(A); see also Roberts v.
Cockrell, 319 F.3d 690 (5th Cir. 2003). Under
Miss. R. App. P. 40(a), Linson had 14 days after his
conviction was affirmed in which to seek a rehearing.
Therefore, his conviction became final on June 9, 2009.
Linson had one year from that date, or until June 9, 2010, in
which to file for federal habeas relief, subject to tolling
under § 2244(d)(2) for any period during which a
properly-filed motion for post-conviction relief was pending
in the state court. Linson filed no motion for
post-conviction relief prior to June 9, 2010. Thus, his one
year expired on that day, and his federal petition, filed on
or about January 4, 2019, is untimely.
it is recommended that the motion to dismiss be granted and
the petition be dismissed with prejudice. The parties are
hereby notified that failure to file written objections to
the proposed findings, conclusions, and recommendation
contained within this report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the proposed factual findings and legal
conclusions accepted by the district court. 28 U.S.C. §
636; Fed.R.Civ.P. 72(b); Douglass v. United Services
Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.