United States District Court, S.D. Mississippi, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
BRAMLETTE UNITED STATES DISTRICT JUDGE
cause is before the Court on Respondent Warden Anderson
Johnson's Motion to Dismiss Pursuant to § 2244(d)
or, in the alternative, as procedurally defaulted for failure
to exhaust state court remedies (docket entry 9); and on
United States Magistrate Judge John C. Gargiulo's Report
and Recommendation (docket entry 10).
Johnson submits that MacArthur Shannon's federal habeas
petition challenging Shannon's guilty plea to vehicular
homicide and resulting sentence of fifteen (15) years is
untimely filed in violation of the one-year statute of
limitations provision of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), and
alternatively because Shannon failed to exhaust state court
remedies. Shannon did not file a response to the
Respondent's Motion to Dismiss.
Shannon filed a Petition for Writ of Habeas Corpus on August
27, 2018, and it was stamped as filed with this Court on
August 29, 2018. Under the AEDPA, a state prisoner is subject
to a one-year period of limitations for filing a § 2254
application. The AEDPA's one-year statute of limitations
is not jurisdictional and may be equitably tolled.
Holland v. Florida, 500 U.S. 631, 646 (2010).
However, a habeas petitioner is entitled to equitable tolling
only if he shows: “(1) that he ha[d] been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Id. at 649 (internal citations
omitted). “Courts must consider the individual facts
and circumstances of each case in determining whether
equitable tolling is appropriate.” Alexander v.
Cockrell, 294 F.3d 626, 629 (5th Cir. 2002).
law prohibits prisoners who plead guilty from directly
appealing to the Mississippi Supreme Court. Miss. Code Ann.
§ 99-35-101. Shannon's conviction therefore became
final on May 22, 2017, the date the Circuit Court's
sentencing order was filed. Shannon's deadline for
seeking federal habeas corpus relief was May 22, 2018.
Shannon signed the instant Petition for federal relief on
August 27, 2018, and it was stamped as filed in this Court on
August 29, 2018. Under the prisoner mailbox rule, a petition
is deemed filed on the date that the prisoner delivered the
petition to prison officials for mailing to the district
court. Richards v. Thaler, 710 F.3d 573, 576 (5th
Cir. 2013). Shannon's § 2254 Petition was filed 97
to 99 days after the May 22, 2018, deadline.
Judge Gargiulo finds that since Shannon failed to file a
motion for postconviction relief in Circuit Court on or
before May 22, 2018, he is not entitled to statutory tolling
under § 2244(d)(2). As for equitable tolling, Shannon
has offered no argument that rare and exceptional
circumstances warrant equitable tolling, and he has not
responded to the Respondent's assertion that there are no
rare and exceptional circumstances. Thus, Shannon's
Petition shall be dismissed because it is barred by the
one-year statute of limitations in 28 U.S.C. § 2244(d).
Shannon failed to exhaust his state remedies, which is a
mandatory prerequisite to federal habeas relief under 28
U.S.C. § 2254(b). He did not appeal the Circuit
Court's denial of his motion for postconviction relief
within 30 days after entry of the order denying his motion.
To overcome the procedural default for purposes of federal
habeas corpus relief, Shannon was required to show cause and
prejudice or a miscarriage of justice, neither of which he
has attempted to do. See Bagwell v. Dretke, 372 F.3d
748, 755 (5th Cir. 2005).
Shannon received Magistrate Judge Gargiulo's Report and
Recommendation on June 18, 2019.
Plaintiff had fourteen days to serve and file written
objections to Magistrate Judge Gargiulo's Report and
Recommendation. He failed to file objections. A party who
fails to file written objections to the proposed findings,
conclusions, and recommendations within fourteen days of
being served a copy of the Report and Recommendations is
barred from attacking on appeal any proposed factual finding
or legal conclusion adopted by the Court to which he did not
object. Douglasss v. United Servs. Auto. Ass'n,
79 F.3d 1415, 1428-29 (5th Cir. 1996).
Court therefore adopts the Report and Recommendation of
Magistrate Judge Gargiulo. Respondent Warden Anderson
Johnson's Motion to Dismiss (docket entry 9) is GRANTED,
and Petitioner MacArthur Shannon's Petition under 28
U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in
State Custody is HEREBY DISMISSED WITH PREJUDICE.