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Cole v. Hall

United States District Court, S.D. Mississippi, Northern Division

July 1, 2019

JOE EARL COLE #173953 PETITIONER
v.
PATRICIA HALL and ATTORNEY GENERAL OF MISSISSIPPI RESPONDENTS

          REPORT AND RECOMMENDATION

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Petition of Joe Earl Cole for Writ of Habeas Corpus [2] pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss [25] pursuant to 28 U.S.C. § 2244(d).[1] Having considered the parties submissions and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss [25] be granted and the Petition [2] be dismissed with prejudice.

         BACKGROUND

         On 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. [25], 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. [25], 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. Id.

         In 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).

         Petitioner, with the aid of counsel, then filed a Petition for Post-Conviction Relief (“PCR”) with the Mississippi Supreme Court on April 21, 2017.[2] 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. Id.

         Petitioner filed the instant Petition [2] 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. [2] 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.

         Second, 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 [25] to Dismiss, Respondent argues that the Petition is untimely and should be dismissed.

         ANALYSIS

         Respondent 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. § 2244(d) 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 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 subsection.

         The 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 review. Id.

         The Fifth Circuit clarified the law for purposes of determining when a state conviction becomes final pursuant to ...


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