United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
petition for writ of habeas corpus is before the Court on the
Report and Recommendation  of Magistrate Judge Robert H.
Walker. Judge Walker recommended dismissal of Jeffrey
Mitchum’s petition as time barred, and Mitchum filed an
Objection. For the reasons explained, the Report and
Recommendation is adopted as the opinion of this Court.
convicted Mitchum of gratification of lust and sexual battery
of his four-year old sister. On February 13, 2013, the trial
court sentenced him to serve concurrent terms of 15 years for
gratification of lust and 30 years for sexual battery.
Mitchum appealed, and the Mississippi Court of Appeals
affirmed the conviction and sentence. He did not file a
petition for certiorari, so his conviction became final on
August 19, 2015. Almost three years later, on May 10, 2018,
Mitchum applied for post-conviction relief
(“PCR”) in state court, which was denied on
August 2, 2018. Soon thereafter, he filed the instant
petition for habeas corpus. Pet.  (signed August 10,
Antiterrorism and Effective Death Penalty Act, 28 US.C.
§ 2244(d), provides for a one-year limitation period for
filing an application for writ of habeas corpus, which begins
to run once the state conviction is final. The limitations
period is tolled during the pendency of any properly filed
state PCR application, provided it is filed before the
one-year federal limitations period expires. 28 US.C. §
2244(d)(2); see R&R  at 3–4 (citing
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.
Walker correctly concluded that Mitchum’s petition,
filed three years after his conviction became final, was
untimely under 28 U.S.C. § 2244(d). R&R  at 3.
In reaching this conclusion, Judge Walker carefully
considered and rejected Mitchum’s arguments as to the
applicability of statutory and equitable tolling based on
newly discovered evidence and “actual innocence.”
Id. at 4–9. The Report and Recommendation is
adopted in its entirety.
the Court will address a few points Mitchum raised in his
Objection. Mitchum first argues that he was given bad advice
as to the filing deadline. He claims the “NLPA EMCF
ILAP Director” refused to immediately accept his August
10, 2018 federal filing, stating there was “No
rush” because “the Federal Courts give inmates 3
extra days to file paperwork.” Obj.  at 1. She
instead accepted the filing on August 15. Id. First,
as pointed out by Judge Walker, “[a] ‘garden
variety claim of excusable neglect such as a simple
“miscalculation”’ that leads a lawyer to
miss a filing deadline, does not warrant equitable
tolling.’” R&R  at 5 (quoting Brown
v. Thaler, 455 F. App’x 401, 407 (5th Cir. 2011)).
Second, Respondent applied the prison mailbox rule in her
motion to dismiss, noting that Mitchum signed the petition on
August 10, 2018. Mot.  at 6 n.6. Third, by August 10,
2018, Mitchum’s habeas petition was already
time-barred. R&R  at 3 (noting Mitchum’s window
for filing a habeas petition closed on August 19, 2016).
Mitchum suggests that Respondent’s motion to dismiss
was untimely. Obj.  at 1. In its September 11, 2018
Order, the Court directed Respondent to file an answer or
other responsive pleading within 20 days “of the
service upon the said Jim Hood of a copy of this
Order.” Order  at 1. The Acknowledgement of Receipt
 indicates the Order was received on September 14, 2018,
so Respondent’s motion, filed October 3, 2018, was
timely. Mot. .
Mitchum attaches copies of his communication with the
Mississippi Innocence Project [14-1] and a case evaluation
generated by National Legal Professional Associates [14-2] to
support his contention that he has been diligently pursuing
his rights. See R&R  at 4 (noting that
“[t]o be entitled to equitable tolling, the petitioner
must show he has been pursuing his rights diligently, and
that some extraordinary circumstances prevented him from
timely filing” (citing Holland v. Florida, 560
U.S. 632, 649 (2010))). Mitchum signed the Mississippi
Innocence Project Application on May 2, 2015, and the case
evaluation is dated November 22, 2016. Application [14-1] at
27; Evaluation [14-2] at 2. Yet Mitchum still waited until
May 2018 to file his state PCR application and until August
2018 to file this habeas petition. Judge Walker correctly
found that Mitchum had not shown he has been diligently
pursuing his rights. R&R  at 5. These documents do
not alter that conclusion.
Court has considered all argument raised; those not addressed
would not have changed the outcome. The Report and
Recommendation  is adopted as the opinion of the Court.
Respondent’s motion to dismiss  is granted; the
action is dismissed with prejudice. A separate judgment will
be entered in accordance with Federal Rule of Civil Procedure
ORDERED AND ADJUDGED.
 The Order also directed the Clerk of
Court to “serve, by certified mail, a copy of the
Petition  filed herein along with a copy of this Order
upon Jim Hood, Attorney General of the ...