Opinion
CIVIL ACTION NO. 5:05cv148-DCB-MTP.
September 25, 2006
ORDER ADOPTING REPORT RECOMMENDATION
This cause is before the Court on United States Magistrate Judge Michael T. Parker's Report and Recommendation [docket entry no. 19], which recommends that the petitioner's Petition for Habeas Corpus Relief [docket entry no. 1] be dismissed with prejudice. Having fully reviewed the Report and Recommendation, the petitioner's specific objections to that report, and the applicable statutory and case law, the Court finds that the Report and Recommendation should be adopted as the opinion of this Court.
Petitioner Lonnie Weaver was convicted of armed robbery by a jury of the Circuit Court of Yazoo County, Mississippi on January 17, 2002. Weaver appealed and the Mississippi Court of Appeals affirmed his conviction on June 10, 2003. See Weaver v. State, 852 So. 2d 82 (Miss.Ct.App. 2003). On May 7, 2004, pursuant to Mississippi Code Section 99-39-27, Petitioner filed with the Mississippi Supreme Court an "Application for Leave to Proceed in the Trial Court on Motion for Post-Conviction Relief." This application was denied on August 20, 2004. Then on September 2, 2004, Petitioner filed a Motion to Reconsider with the Mississippi Supreme Court, and that motion was denied on December 17, 2004. On August 9, 2005, Weaver petitioned this Court for a Writ of Habeas Corpus. Respondents then moved for dismissal arguing that Weaver's petition was barred by the one-year statute of limitations found in 28 U.S.C. § 2244.
Section 2244's one-year statute of limitations begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review." The statute of limitations, however, is tolled during the pendency of any "properly filed" state post-conviction relief proceeding. 28 U.S.C. § 2244. The statute began to run against Weaver on June 24, 2003, fourteen days after the Mississippi Court of Appeals affirmed his conviction. See Miss. R. App. P. 40. The statute ran 303 days before it was tolled by Weaver's Application for Post-Conviction Relief. When the Mississippi Supreme Court denied Petitioner's application on August 20, 2004, the statute began to run again. This denial constituted a final judgment and barred any successive applications for post-conviction relief. See Miss. Code Ann. § 99-39-27. Eleven days then passed before Weaver filed his motion to reconsider. When this motion was denied on December 17, 2004, Petitioner had fifty-one more days to timely file his petition. Since Petitioner did not file his petition until 235 days later, his petition must be dismissed. Accordingly,
Whether a motion to reconsider is a "properly filed" form of "state post-conviction relief" is an open question. The Court need not decide this issue, however, since Weaver's petition would be untimely even if the motion tolled the statute of limitations.
IT IS HEREBY ORDERED that the Report and Recommendation of United States Magistrate Judge Michael T. Parker be, and the same is hereby, adopted as the finding of this Court, and the action should be dismissed with prejudice.
A separate judgment will be entered by the Court in accordance with Rule 58 of the Federal Rules of Civil Procedure.
SO ORDERED.