United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.
matter comes before the court on the pro se petition
of Bryce Brandon Heisser 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). Mr. Heisser 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 untimely filed.
and Procedural Posture
instant petition, Bryce Brandon Heisser challenges his 2006
conviction and sentence for armed robbery, aggravated
assault, and burglary of a dwelling in the Rankin County
Circuit Court. On November 1, 2006, a jury found Heisser
guilty of armed robbery, aggravated assault, and burglary of
a dwelling, and the trial court sentenced Heisser to serve
consecutive terms of life in the custody of the MDOC for
armed robbery, twenty (20) years for aggravated assault, and
twenty-five (25) years for burglary of a dwelling house.
See Exhibit A (Judgment of Convictions and Sentence
Instanter, Rankin County Circuit Court, Cause No. 17, 353).
April 5, 2007, Mr. Heisser filed a Motion for Production of
Trial Transcripts and Relevant Documents in Rankin County
Circuit Court Cause No. 17, 353, which the circuit court
denied. Heisser then filed a Motion for Reconsideration,
which the circuit court also denied. He sought an appeal of
the denial of his Motion for Reconsideration, and the State
filed a motion to dismiss for lack of jurisdiction or lack of
an appealable judgment, which the Mississippi Court of
Appeals granted. See SCR, Cause No. 2008-CP-1209;
see also SCR, Cause No. 2015-KA-1046-COA, Vol. 1.
Heisser signed a “Petition for Post-Conviction
Relief” on November 23, 2009, which was filed in the
Rankin County Circuit Court on December 7, 2009 (Cause No.
09-312); in it, he argued that trial counsel was ineffective
for not appealing his convictions and sentences and requested
an out-of-time appeal. See Exhibit E. On January 8,
2010, the Rankin County Circuit Court dismissed the petition
as time-barred and without any exceptions, as a jury had
convicted Heisser of the underlying crimes on November 1,
trial court granted Heisser an out-of-time appeal eight years
later on June 30, 2015 (Exhibit B), and on November 1, 2016,
the Mississippi Court of Appeals affirmed Heisser's
convictions and sentences. See Heisser v. State, 213
So.3d 544 (Miss. Ct. App. 2016), reh'g denied,
March 14, 2017 (Cause No. 2015-KA-01046-COA). He did not seek
certiorari review in the Mississippi Supreme Court.
Heisser signed an “Application for Leave to Proceed in
the Trial Court, ” along with his “Motion for
Post-Conviction Relief” (collectively the “PCR
motion”) on August 15, 2018; it was stamped as filed in
the Mississippi Supreme Court on August 28, 2018.
See SCR, Mississippi Supreme Court Cause No.
2018-M-1223. On November 8, 2018, the Mississippi Supreme
Court found all of Heisser's claims to be without merit
and denied his PCR motion. Exhibit D. Heisser signed the
instant petition on December 5, 2018; it was stamped as
“filed” in this court on December 20, 2018. ECF
doc. 1. Thus, absent statutory or equitable tolling, the
petition was untimely filed.
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