Opinion
Civil Action No. 4:05CV165LS.
July 13, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Cheyenne Smith, the Petitioner in this habeas corpus cause, was found guilty in the Circuit Court of Noxubee County of the crime of aggravated assault, and, on March 21, 2001, he was sentenced by that court ten years in the custody of the Mississippi Department of Corrections. Smith appealed his conviction, and, on November 19, 2002, the Mississippi Court of Appeals affirmed the lower court's judgment. There is no record of further direct review; however, Smith filed an Application for Leave to File Motion for Post Conviction Collateral Relief on May 6, 2005. That Petition was denied by the Mississippi Supreme Court on June 3, 2005. On October 14, 2005, Smith filed this Petition for Habeas Corpus.
This cause is now before the Court upon the Respondents' Motion to Dismiss Pursuant to 28 U.S.C. § 2244(d). The Respondents assert that Smith's 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.
It is the opinion of the undersigned that the one-year statute of limitations has run against Smith and that his Petition should be dismissed with prejudice. A prisoner who does not seek discretionary review from the state's highest court does not get the benefit of the ninety-day period for seeking certiorari from the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693-94 (5th Cir. 2003). Thus, for a prisoner who stops his appeal process at the Mississippi Court of Appeals, his conviction becomes final when the time for seeking review from the Mississippi Supreme Court expires. Pursuant to Miss. R. App. R. 17(b), the time for seeking review from the Mississippi Supreme Court expires within fourteen days of the entry of judgment by the Court of Appeals, or the disposition of a petition for rehearing by that court. In Smith's case, the Mississippi Court of Appeals affirmed his conviction on November 19, 2002, and his judgment of conviction became final fourteen days later, or on December 3, 2002. Therefore, Smith had until December 3, 2003, within which to apply for habeas relief.
Smith's Petition was not filed until October 14, 2005, which was almost two years too late. According to the provisions of AEDPA, a properly filed application for post-conviction relief would toll the limitations period. Smith filed such a pleading, but not until May 6, 2005, which was after his time for seeking habeas relief had expired. Therefore, Smith's application for post-conviction relief could not effectively toll AEDPA's statute of limitations, and he is barred from seeking relief in this court.
For all of these reasons, it is the opinion of the undersigned that Smith's habeas petition was filed too late, and that Respondents' motion is meritorious and should be granted. It is, therefore, the recommendation of the undersigned United States Magistrate Judge that the respondents' Motion to Dismiss Pursuant to § 2244(d) be granted and that the Petition for Writ of Habeas Corpus filed by Cheyenne Smith be dismissed with prejudice due to his 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).