Granger v. Kelly

Full title: ANTONIO GRANGER, PETITIONER v. LAWRENCE KELLY, et al RESPONDENTS

Court: United States District Court, N.D. Mississippi, Greenville Division

Date published: Apr 26, 2006

CIVIL NO. 4:05CV60-M-B (N.D. Miss. Apr. 26, 2006)

Opinion

CIVIL NO. 4:05CV60-M-B.

April 26, 2006

REPORT AND RECOMMENDATION

EUGENE BOGEN, Magistrate Judge

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State of Mississippi has responded with a motion to dismiss pursuant to § 2244(d), asserting that the one year period of limitation expired prior to the filing of this petition. This statute provides as follows:

(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 a 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 presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Petitioner was convicted of possession of marijuana with intent to sell, transfer, or distribute, in the Circuit Court of Washington County. He was sentenced as a habitual offender to serve a term of 30 years in the custody of the Mississippi Department of Corrections. On July 22, 2003, the Mississippi Court of Appeals affirmed the judgment of conviction and sentence. Granger declined to seek further discretionary review in state court, and thereby "stopped the appeal process" and waived his right to seek a writ of certiorari from the U. S. Supreme Court.¹ Roberts v. Cockrell, 319 F.3d 690 (5^th Cir. 2003). Accordingly, his conviction became final on August 5, 2003 (July 22, 2003, plus 14 days for filing a petition in state court for writ of certiorari).

1 Granger filed a motion for rehearing on August 11, 2003, which was denied on August 26, 2003, by the court of appeals as untimely filed. He the filed a "Motion to Set Aside Judgment Under Rule 60(b)," which was denied on October 9, 2003. He also filed a "Motion for Stay of Judgment to File Writ of Certiorari" in the Mississippi Supreme Court, which was denied on October 15, 2003. He then filed a motion in the court of appeals "To Reconsider Motion to Set Aside Judgment," which was denied on October 30, 2003.

Unless petitioner filed a "properly filed" application as contemplated by 28 U.S.C. § 2244(d)(2) on or before August 5, 2004, to toll the period of limitations, his habeas petition would be filed too late. See Flanagan v. Johnson, 154 F.3d 196, 201 (5^th Cir. 1998); Davis v. Johnson, 158 F.3d 806 (5^th Cir. 1998). Granger did not do so.² Therefore, the tolling provision is not applicable. The petition before the court was filed on March 3, 2005, which is clearly untimely under § 2244(d).

2 Petitioner filed an application for leave to file a post-conviction motion in the trial court on September 17, 2004, 43 days after the deadline to file a habeas petition. It was denied by the Mississippi Supreme Court on December 3, 2004.

Accordingly, it is recommended that this petition be denied and the case dismissed.

The parties are referred to 28 U.S.C. 636(b)(1) and Local Rule 72.2(D) for the appropriate procedure in the event any party desires to file objections to these findings and recommendations. Objections are required to be in writing and must be filed within ten days of this date. Failure to file written objections to the proposed finding and recommendations contained in this report within ten days from the date of filing will bar an aggrieved party from challenging on appeal both the proposed factual findings and the proposed legal conclusions accepted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415 (5^th Cir. 1996).

Petitioner is directed to acknowledge receipt of this report and recommendation by signing the acknowledgment form attached to his copy of this Report and Recommendations, and returning it to the court within ten days of this date. Petitioner is warned that failure to comply with the requirements of this paragraph may lead to the dismissal of this lawsuit under F.R.Civ.P. 41(b) for failure to prosecute and for failure to comply with an order of the court.