Opinion
CIVIL ACTION NO.: 3:05cv697-TSL-JCS.
October 31, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This cause is before the undersigned on the Respondents' Motion to Dismiss Pursuant to § 2244(d) or, in the Alternative, Motion to Dismiss for Failure to Exhaust, docket entry no. 9. The Petitioner has filed no response to the motion. The undersigned, having considered the motion, the memorandum and the record, concludes that it should be granted for the reasons that follow.
FACTS AND PROCEDURAL HISTORY
Patrick was convicted of murder in the Circuit Court of Scott County, Mississippi, on August 2, 1996, and was sentenced to life in prison on February 10, 1997. Her conviction was affirmed by the Mississippi Court of Appeals in an unpublished decision on October 13, 1998. Patrick v. State, (Cause No. 97-KA-00226-COA) (Miss.App. 1998). Her petition for rehearing was denied on January 26, 1999, and she failed to seek further review in the state court. Exhibit C to Respondents' Motion to Dismiss.
The Motion contains a scrivener's error listing the appeals court decision as being rendered on "September 30, 2003."
Unless otherwise noted, all Exhibits are those exhibits referred to in the Respondents' Motion to Dismiss.
Over six years later, on November 10, 2005, Patrick signed her Petition for Writ of Habeas Corpus in the instant cause, and this petition was received by the Clerk of the Court and filed on November 18, 2005. In her petition, Patrick claims that she received ineffective assistance of counsel at her trial and on appeal; that her rights against self-incrimination were violated; that her home was illegally searched; and, that she had discovered new evidence which would exonerate her. Specifically, Patrick attaches an unsworn letter dated October 30, 2005, purportedly signed by her mother, which recites that her uncle confessed to the crime for which she was convicted.
By Order filed March 6, 2006, the Respondents were directed to file an Answer in this cause, and they responded by filing the instant Motion on March 28, 2006. The Petitioner has not responded to the motion.
DISCUSSION
The Respondents assert that the instant petition is barred by the one year statute of limitations contained in the Anti-Terrorism and Effective Death Penalty Act ["AEDPA"], as found in 28 U.S.C. § 2244(d). This statute provides as follows:
(1) A 1-year period of limitation shall apply to an application for 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 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.
The AEDPA, enacted on April 24, 1996, imposed a one-year statute of limitations for the filing of a federal habeas petition. Asserting that Patrick's petition does not fall into any of the exceptions listed in § 2244(d)(1)(B-D), the State argues that her petition is untimely. It contends her conviction became final under AEDPA on February 9, 1999, which was fourteen days after the Mississippi Court of Appeals denied her motion for rehearing on its decision that affirmed her conviction. MISS. R.APP.P. 17(b) provides an appellant 14 days after a motion for rehearing is denied to file a motion for writ of certiorari in the Mississippi Court of Appeals. This is a mandatory step to continue in the discretionary review process afforded in the Mississippi appellate procedure. The failure to file this motion "stops the appeal process" and the appellant is unable to pursue further direct review in the Mississippi Supreme Court by way of a petition for writ of certiorari or review in the United States Supreme Court by way of a petition for writ of certiorari. By failing to file this motion, Patrick effectively waived her right to seek a writ of certiorari from the Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). The Respondents citeRoberts for interpreting § 2244(1)(A): if a defendant stops the appeal process, the conviction became final when the time for seeking further direct review in the state court expires. Roberts, 319 F.3d at 694.
The Respondents assert that the AEDPA statute began running on that date, February 9, 1999, and continued running without being tolled by any "properly filed" application until February 9, 2000. No state court post-conviction pleadings were filed within that year which would have tolled the statute. The State asserts that Patrick's habeas filing on November 10, 2005, was at least 2,101 days too late from the February 9, 2000, filing deadline, and no "rare and exceptional" circumstances are set forth which would warrant an equitable tolling of the statute.
The Court's review of the relevant dates demonstrates that the State is correct. Here, Patrick's conviction was affirmed on October 13, 1998. Her petition for rehearing was denied on January 26, 1999. She failed to file a writ of certiorari within the fourteen days provided for in Rule 17 of the Mississippi Rules of Appellate Procedure, so her conviction became final when fourteen days expired, February 9, 1999. The AEDPA statute of limitations began running on that date and ran without tolling until February 9, 2000. Patrick's filing on November 10, 2005, was at least 2,101 days too late to have met the AEDPA statute of limitations [February 9, 2000 — November 10, 2005].
The Court also notes that the Petitioner has not presented her claim of "newly discovered evidence" to the state courts, and that issue is unexhausted. MISS. CODE ANN. § 99-39-5 provides an exception to the three year statute of limitations for post conviction filings in the state courts in cases where the Petitioner "has evidence, not reasonable discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence." Although it is doubtful that the unsworn letter from her mother would meet this standard, the Petitioner could file an out of time petition for post-conviction relief and argue that the motion should be reviewed on its merits as an exception as provided for in this statute.
CONCLUSION
It is the recommendation of the undersigned United States Magistrate Judge that the Respondents' Motion to Dismiss Pursuant to § 2244(d) or, in the Alternative, Motion to Dismiss for Failure to Exhaust [#9] be granted, and that the Petition for Writ of Habeas Corpus filed by Mary Ellen Patrick be dismissed with prejudice due to her failure to comply with the one year statute of limitations contained in 28 U.S.C. § 2244(d).
The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. 28 U.S.C. § 636,Douglass v. United Services Auto. Ass'n., 79 F.3d 1415, 1428-29 (5th Cir. 1996).