United States District Court, N.D. Mississippi, Greenville Division
OPINION AND ORDER
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the pro se petition
of Everett Boyd for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Respondents have moved to dismiss the
petition as time-barred. The petitioner has responded to the
motion, and the matter is ripe for resolution. For the
reasons set forth below, Respondents' motion will be
granted, and the instant petition will be dismissed as
untimely filed under 28 U.S.C. § 2244(d).
and Procedural Background
Everett Boyd is currently in the custody of the Mississippi
Department of Corrections and housed at the Marshall County
Correctional Facility located in Holly Springs, Mississippi.
On February 25, 2006, Boyd was convicted of the crimes of
murder while engaged in the crime of drive-by shooting and of
shooting into an occupied dwelling in the Circuit Court of
Holmes County, Mississippi. Doc. #8-1. Subsequently, on March
21, 2006, Boyd was sentenced to a term of life on the murder
conviction and a term of ten (10) years on the conviction of
shooting into an occupied dwelling, the sentences to be
served concurrently. Id. Boyd's convictions and
sentences were affirmed by the Mississippi Supreme Court on
March 20, 2008. See Doc. #8-2; Boyd v.
State, 977 So.2d 329 (Miss. 2008). Boyd did not seek
certiorari review with the United States Supreme Court.
April 1, 2011, Boyd signed an “Application for Leave to
File for Post-Conviction Collateral Relief in the Circuit
Court of Holmes County, Mississippi, ” which was
stamped as “filed” in the Mississippi Supreme
Court on April 5, 2011. Doc. #9-8. That application was
denied by Order of the Mississippi Supreme Court on June 2,
2011. Doc. #8-3. In its Order, the Mississippi Supreme Court
found that Boyd had failed to make a substantial showing of
the denial of a state or federal right, and further that his
claim for ineffective assistance of counsel failed to meet
the Strickland standard. Id.
than a year later, on June 19, 2012, Boyd submitted an
“Application for Leave to File Petition for
Post-Conviction Collateral Relief Pursuant to 99-39-27(9),
” which was stamped as “filed” in the
Mississippi Supreme Court on June 22, 2012. Doc. #9-8. The
Mississippi Supreme Court denied Boyd's application on
July 26, 2012. Doc. #8-4. In its Order, the Mississippi
Supreme Court found that Boyd's application was
procedurally barred as both untimely and successive.
six years later, on December 8, 2018, Boyd signed a
“Motion for Leave to Proceed in the Trial Court,
” which was stamped as “filed” in the
Mississippi Supreme Court on December 10, 2018. Doc. #9-9.
Boyd's motion was denied by Order of the Mississippi
Supreme Court on February 1, 2019. Doc. #8-5. Within the
Order, the Mississippi Supreme Court found that the motion
was untimely, successive, and without merit. Id.
Thereafter, Boyd sought rehearing of the Court's
decision, but that motion was denied by Order filed on March
1, 2019. Doc. #8-6. Boyd additionally filed a “Petition
for Writ of Certiorari” which was denied by the
Mississippi Supreme Court on March 22, 2019. Doc. #8-7.
filed the instant petition for federal habeas corpus relief
on June 24, 2019. Doc. #1. On September 18, 2019, the court
entered an order directing the respondents to answer
Boyd's petition on or before November 27, 2019. Doc. #5.
On October 8, 2019, the State moved to dismiss Smith's
petition as untimely. Doc. #8. Boyd filed his response in
opposition on November 12, 2019. Doc. #13.
instant petition for a writ of habeas corpus is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Egerton v. Cockrell, 334 F.3d
433, 436 (5th Cir. 2003). The issue of whether
Respondents' motion to dismiss should be granted turns on
the statute's limitation period, which provides:
(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