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Heisser v. Taylor

United States District Court, N.D. Mississippi, Oxford Division

October 16, 2019

BRYCE BRANDON HEISSER PETITIONER
v.
HAROLD TAYLOR, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE.

         This 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.

         Facts and Procedural Posture

         In the 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[1] (Judgment of Convictions and Sentence Instanter, Rankin County Circuit Court, Cause No. 17, 353).

         On 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.

         Mr. 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, 2006. Id.

         The 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.

         Mr. 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.

         One-Year Limitations Period

         Decision in this case is governed by 28 U.S.C. § 2244(d), which 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 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 ...

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