United States District Court, N.D. Mississippi, Greenville Division
SHARION AYCOCK U.S. DISTRICT JUDGE.
matter comes before the court on the pro se petition
of Fredrico Stone 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 responded to the motion, and 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
and Procedural Posture
26, 2013, a jury found Fredrico Stone guilty of possession of
a controlled substance as a habitual offender under Miss.
Code Ann. § 99-19-81, and the Coahoma County Circuit
Court sentenced Stone to serve sixteen (16) years in the
custody of the Mississippi Department of Corrections (MDOC),
to run consecutively to any and all sentences previously
imposed. See Exhibit A (Judgment and Sentence, Coahoma
County Circuit Court, Cause No. 2012-0105). Mr. Stone
appealed, and on October 6, 2015, the Mississippi Court of
Appeals affirmed Stone's conviction and sentence.
Stone v. State, 188 So.3d 593 (Miss. Ct. App. 2015),
reh'g denied, April 12, 2016 (Cause No.
2014-KA-00480-COA). He did not seek certiorari
review in the Mississippi Supreme Court.
docket in Coahoma County Circuit Court Cause No. 2012-0105
reflects that, on November 2, 2016, Stone filed a Motion for
Records and Transcripts, which the circuit court denied on
December 12, 2016. See Exhibit F (Order Dismissing
Motion for Records and Transcripts). In its order, the
circuit court found that, because “Stone filed a direct
appeal of his conviction and sentence, ” it was
“without jurisdiction to consider the motion.”
Id. The circuit court also held that “filing a
proper PCR motion is a prerequisite to obtaining free records
and transcripts, ” and it did “not construe
Stone's filing as a motion pursuant to the Mississippi
Uniform Post-Conviction Collateral Relief Act, although Stone
does mention that he would like to file a PCR motion.”
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
exercise of due diligence.
(2) The time during which a properly filed application for
State postconviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...