United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on the Petition of Joe Earl Cole
for Writ of Habeas Corpus  pursuant to 28 U.S.C. §
2254 and Respondent's Motion to Dismiss  pursuant to
28 U.S.C. § 2244(d). Having considered the parties
submissions and the applicable law, the undersigned
recommends that Respondent's Motion to Dismiss  be
granted and the Petition  be dismissed with prejudice.
February 22, 2012, Petitioner was convicted of one count of
sexual battery and three counts of gratification of lust in
the Circuit Court of Rankin County, Mississippi. Mot. ,
Ex. B. On February 23, 2012, the circuit court sentenced
Petitioner to twenty years for sexual battery and fifteen
years for each gratification of lust conviction. Mot. ,
Ex. C. The three gratification of lust sentences were to run
concurrently, but consecutively to the sentence for sexual
battery. Id. The last ten years of the gratification
of lust convictions were suspended by the trial court and
Petitioner was also sentenced to supervised probation.
2013, the conviction was affirmed by the Mississippi Supreme
Court. Cole v. State, 126 So.3d 880 (Miss. 2013).
Petitioner then applied to the United State Supreme Court for
a writ of certiorari, which was denied on April 21,
2014. Cole v. Mississippi, 572 U.S. 1062 (2014).
with the aid of counsel, then filed a Petition for
Post-Conviction Relief (“PCR”) with the
Mississippi Supreme Court on April 21, 2017. Mississippi
Supreme Court Cause No. 2017-M-00550. The PCR was dismissed
because the Mississippi Supreme Court found that the petition
was untimely and no exception to the time bar applied.
Id. The Mississippi Supreme Court also held that
Petitioner's claim for ineffective assistance of counsel
did not meet the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984) and that the remaining
claims could have been raised at trial or on direct appeal.
filed the instant Petition  on October 26, 2018.
Petitioner states that he is trying to get the “time
bar reversed” so he can proceed with his PCR at the
Mississippi Supreme Court. Pet.  at 5. Petitioner has
filed multiple voluminous pleadings that incorporate his
current Petition along with submissions to other courts, but
the Court understands them to contain four basic arguments.
First, it is Petitioner's position that he was not aware
of the status of his PCR and its dismissal because he is
incarcerated and does not have access to the internet, and
the Mississippi Supreme Court opinions are published on the
internet. Id. Petitioner claims he was delayed in
receiving a ruling on his PCR and the “time bar”
should not apply to him.
Petitioner asserts that his attorney was ineffective in
handling his PCR and that his trial counsel was also
ineffective. Id. at 6. Third, Petitioner requests
that the “new evidence” about his case be
considered. Id. at 8. Fourth, Petitioner claims
there were “conspiracy elements” about how his
case was handled during the investigation and at trial.
Id. at 9. In the Motion  to Dismiss, Respondent
argues that the Petition is untimely and should be dismissed.
submits that the Petition is untimely under 28 U.S.C. §
2244(d) because it was filed more than a year after
Petitioner's conviction became final. 28 U.S.C. §
(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 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
(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 subsection.
petitioner must file the petition within one year from the
date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such
Fifth Circuit clarified the law for purposes of determining
when a state conviction becomes final pursuant to ...