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Ellis v. King

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

July 16, 2019

BRYN ELLIS, #186582 PETITIONER
v.
SUPERINTENDENT RON KING RESPONDENT

          REPORT AND RECOMMENDATION

          Michael T. Parker, United States Magistrate Judge.

         THIS MATTER is before the Court on the Petition of Bryn Ellis for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss [7] 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 [7] be granted and the Petition [1] be dismissed with prejudice.[1]

         BACKGROUND

         On October 4, 2013, Petitioner was convicted of murder in the Circuit Court of Hinds County, Mississippi. Sentencing Order [7-1]. The court sentenced Petitioner to a term of life imprisonment in the custody of the Mississippi Department of Corrections (“MDOC”). Id. On December 15, 2015, the Mississippi Court of Appeals affirmed. MSCOA Opinion [7-2]; Ellis v. State, 196 So.3d 1029 (Miss. Ct. App. 2015). The Mississippi Supreme Court denied certiorari on August 4, 2016 and Petitioner did not seek a writ of certiorari from the United States Supreme Court. Order [7-3].

         On March 1, 2018, Petitioner filed a state petition for post-conviction relief (“PCR”). Petition [7-4]. On April 25, 2018, the Mississippi Supreme Court dismissed the petition, finding that the claims were procedurally barred because they were raised at trial and on direct appeal or were capable of being raised in those proceedings. Order [7-5]. Furthermore, the court found that the claims did not have merit. Id. Petitioner filed a Motion for Reconsideration and the Mississippi Supreme Court dismissed the motion on July 2, 2018. [8-9] at 29.

         On October 5, 2018, Petitioner filed a “Federal Rights Petition” in state court. Petition [7-6]. On October 16, 2018, the Mississippi Supreme Court dismissed the petition without prejudice to be filed in the appropriate federal court. Order [7-7].

         On December 10, 2018, Petitioner filed his Petition for Writ of Habeas Corpus [1] seeking a new trial, an evidentiary hearing, reversal of his conviction, and a reduction of his sentence. Petition [1] at 15. Thereafter, Respondent filed a Motion to Dismiss [7] claiming that the Petition [1] was untimely and should be dismissed with prejudice.

         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 ...

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