United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
matter comes before the court on the pro se petition
of Bobby Glyn Allred 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). The petitioner has not responded to the motion,
and the deadline to do so has expired. 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 dismissed as untimely
and Procedural Posture
Allred is currently in the custody of the Mississippi
Department of Corrections (MDOC) and is housed at the
Mississippi State Penitentiary in Parchman, Mississippi. He
was convicted of three counts of sexual battery in the
Circuit Court of Union County, Mississippi. Allred was
sentenced to serve 25 years on each count in the custody of
the MDOC. See Exhibit A; see also State
Court Record (SCR), Vol. 1, p. 53. The trial court ordered
that the sentences be served consecutively.
August 16, 2005, the Mississippi Court of Appeals affirmed
Allred's convictions and sentences. Allred v.
State, 908 So.3d 889 (Miss. Ct. App. 2005). The mandate
of the court, issued on September 6, 2005, reflects that he
failed to timely seek discretionary review in state court by
filing a petition for rehearing under Miss. R. App. P. 40.
See Exhibit C. By failing to timely seek the first
step of discretionary review, Allred “stopped the
appeal process” and was unable to pursue further direct
review in the Mississippi Supreme Court - or review in the
United States Supreme Court. See Roberts v.
Cockrell, 319 F.3d 690, 693 n. 14 (5th Cir.
first application for state post-conviction relief
challenging his convictions and sentences at issue was signed
on January 19, 2007. See SCR, Cause No.
2007-M-00116. The application was dismissed in part and
denied in part by the Mississippi Supreme Court on March 1,
2007. See Exhibit D; see also SCR, Cause
No. 2007-M-00116. Over 2½ years later, on December 15,
2009, he signed a Motion for Post-Conviction Collateral
Relief, which was stamped “filed” in the
Mississippi Supreme Court on December 16, 2009. See
SCR, Cause No. 2007-M-00116. On February 5, 2010, the
Mississippi Supreme Court found that “most of the
claims raised in the petition are barred. Miss. Code Ann.
§ 99-39-27.” See Exhibit E; see
also SCR, Cause No. 2007-M-00116. The court also
concluded that, “[n]otwithstanding the procedural bar,
the panel finds those claims to be without merit.”
Id. The state court found, however, that
“Allred's request for DNA testing is not facially
barred and that a response from the State is necessary on
that claim only.” Id. On April 8, 2010, the
Mississippi Supreme Court found the remaining claims related
to DNA testing were without merit. See Exhibit F;
see also SCR, Cause No. 2007-M-00116.
ten years later, on May 2, 2017, Allred signed a
“Motion for Retrial Due to Newly Discovered Evidence,
” which was stamped as filed in the Mississippi Supreme
Court on June 12, 2017. See SCR, Cause No.
2017-M-00793. On July 26, 2017, the Mississippi Court
dismissed Allred's motion, finding that it was a
successive writ, time barred, and the claims presented could
have been raised at trial or on direct appeal. See
Exhibit G; see also SCR, Cause No. 2017-M-00793. The
court held that “Allred has not presented an arguable
basis for his claims and has not shown that his petition
should be excepted from the procedural bars. See Means v.
State, 43 So.3d 438 (Miss. 2010).” See
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