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Allred v. Flagg

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

June 7, 2019

BOBBY GLYN ALLRED PETITIONER
v.
VERLENA FLAGG, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

         This 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 filed.

         Facts and Procedural Posture

         Bobby 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.

         On 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. 2003).

         Allred's 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.

         Over 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 Exhibit G.

         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 ...

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