SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Jimmy Lamont Roberts for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition as untimely filed under 28 U.S.C. § 2244(d)(2). Mr. Roberts has not responded to the motion, and the deadline to do so has expired. The matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the instant petition for a writ of habeas corpus dismissed as untimely filed.
The instant case has a lengthy procedural history. On September 3, 2010, Jimmy Lamont Roberts pled guilty to statutory rape in the Circuit Court of Lowndes County, Mississippi, Cause No. 2008-351. See Exhibit A.
Mr. Roberts signed his first motion for post-conviction relief on October 3, 2010,
Mr. Roberts signed his second motion for post-conviction relief on December 11, 2010,
Mr. Roberts signed his third motion for post-conviction relief on August 22, 2011, which was filed on September 1, 2011, in Lowndes County Circuit Court, Cause No. 2010-0114-CV1. Exhibit H. This motion raised claims of ineffective assistance of counsel regarding the evidence and the plea, self-incrimination, and a request for records. Id. On November 30, 2011, the Lowndes County Circuit Court denied the motion, finding that Roberts "offered no specific facts as to how his counsel was ineffective, nor has he offered any proof that his counsel was ineffective." Exhibit I. The trial court further found that Roberts "allegations do not meet the standards of ineffective assistance of counsel set by Strickland v. Washington, 466 U.S. 668." Id. The docket in Lowndes County Circuit Court Cause No. 2010-0114-CV1 reflects that Roberts did not appeal the trial court's November 30, 2011 order. See Exhibit E.
Mr. Roberts is not entitled to statutory tolling of the one-year limitations period under 28 U.S.C. § 2244(d)(2) during the pendency of his remaining state post-conviction motions, which were all filed after April 19, 2012, the deadline for him to seek federal habeas corpus relief.
Mr. Roberts signed his fourth motion for post-conviction relief on March 11, 2014; it was filed on March 18, 2014, in Lowndes County Circuit Court, Cause No. 2010-0114-CV1. Exhibit J. This motion sought an order for the clerk to provide copies of all pertinent records and transcripts in his criminal matter. Id. On May 30, 2014, the Lowndes County Circuit Court denied the motion. Exhibit K. Mr. Roberts did not appeal the trial court's order denying post-conviction relief. See Exhibit E, Docket for Lowndes County Circuit Court Cause No. 2010-0114-CV1. This post-conviction motion was signed on March 11, 2014, and dismissed on May 30, 2014.
On November 28, 2016, Mr. Roberts signed an "Application for Leave to Proceed in the Trial Court" and a "Motion for Post-Conviction Collateral Relief," which were filed with the Mississippi Supreme Court in Cause No. 2016-M-01701 on December 5, 2016. Exhibit L. This motion asserted claims of ineffective assistance of counsel, mental incompetence, and issues with his plea and sentence. Id. On February 15, 2017, the Mississippi Supreme Court dismissed this motion without prejudice for Roberts to file same in the trial court. Exhibit M.
Mr. Roberts then signed another "Application for Leave to Proceed in the Trial Court" and "Motion for Post-Conviction Collateral Relief" on July 1, 2017, which was filed in Mississippi Supreme Court Cause No. 2016-M-01701 on July 5, 2017. Exhibit N. In this document, Mr. Roberts argued the same issues as those in the November 28, 2016 motion (see Exhibit L) but added claims that the trial judge was prejudiced against him. Exhibit N. On July 26, 2017, the Mississippi Supreme Court filed an Order dismissing the application without prejudice to Roberts' ability to file it in the trial court. Exhibit O.
Mr. Roberts filed another motion for post-conviction relief on December 6, 2016,
Roberts filed another motion for post-conviction relief on August 20, 2017,
Mr. Roberts signed another motion for post-conviction relief on April 2, 2018, which was filed on May 2, 2018, in the Lowndes County Circuit Court, Cause No. 2010-0114-CV1. Exhibit U. This motion raised several claims and complaints against Wilkinson County Correctional Facility (WCCF) and requested a reduction of his sentence. Id. On May 21, 2018, the Lowndes County Circuit Court dismissed the motion without a hearing, finding that it was without jurisdiction to entertain the matter, as Mr. Roberts' appeal was pending. Exhibit V. He did not appeal the trial court's order denying postconviction relief. See Exhibit E.
Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:
28 U. S.C. § 2244(d)(1) and (2).
By statute, a criminal defendant in Mississippi may not pursue a direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101. Mr. Roberts' conviction therefore became final on September 3, 2010, the date on which the circuit court entered his guilty plea. See Roberts v. Cockrell, 319 F.3d 690 (5
Mr. Roberts is entitled to forty-eight (48) days of statutory tolling during the pendency of his October 3, 2010, motion for post-conviction collateral relief, which was dismissed on November 19, 2010. As such, his new federal habeas corpus deadline became Monday, October 24, 2011 (September 6, 2011 + 48 days = October 24, 2011).
He is also entitled to statutory tolling during the pendency of his post-conviction motion signed on December 11, 2010, and dismissed on February 23, 2011. Mr. Roberts is entitled to seventy-five (75) days of statutory tolling during the pendency of that motion.
Mr. Roberts is likewise entitled to statutory tolling during the pendency of his post-conviction motion signed on August 22, 2011. That motion was denied on November 30, 2011, and he is entitled to one hundred one (101) days of statutory tolling during the pendency of this motion. Hence, the deadline for Mr. Roberts to seek federal habeas corpus relief became Thursday, April 19, 2012 (January 9, 2012 + 101 days = Thursday, April 19, 2012).
Mr. Roberts is not entitled to statutory tolling of the one-year limitations period during the pendency of his post-conviction motions filed after April 19, 2012, the deadline for seeking federal habeas corpus relief. Thus, April 19, 2012, is the final deadline for Mr. Roberts to have filed a timely petition for a writ of habeas corpus, and he did not do so.
In addition, Mr. Roberts is not entitled to equitable tolling of the one-year limitations period. "The doctrine of equitable tolling preserves a [petitioner's] claims when strict application of the statute of limitations would be inequitable." United States v. Patterson, 211 F.3d 927, 930 (5
The decision whether to apply equitable tolling turns on the facts and circumstances of each case. Felder v. Johnson, 204 F.3d 168, 171 (5
The petitioner bears the burden of establishing that equitable tolling is warranted. See Phillips v. Donnelly, 216 F.3d 508, 511 (5
Mr. Roberts sought an appeal of his conviction and pursued various forms of post-conviction relief many times, but he did not seek habeas corpus relief in this court until six years past the deadline. He has offered no explanation for choosing to repeatedly pursue relief in state courts, rather than file a federal petition for a writ of habeas corpus. Certainly, MDOC inmates are told in detail about state post-conviction and federal habeas corpus relief — and provided packets of information and legal assistance to guide them during the process through the Inmate Legal Assistance Program. See Neal v. Bradley, 2006 WL 2796404 (N.D. Miss. 2006). The packet includes an extremely detailed section explaining state and federal limitations periods — and the interplay between them. Id. Mr. Roberts had ample opportunity to seek federal habeas corpus relief in a timely fashion but did not do so. Thus, equitable tolling is not available to extend his deadline for seeking federal habeas corpus relief, which remains April 19, 2012.
Under the prison "mailbox rule," the instant pro se federal petition for a writ of habeas corpus is deemed filed on the date the petitioner delivered it to prison officials for mailing to the district court. Coleman v. Johnson, 184 F.3d 398, 401, reh'g and reh'g en banc denied, 196 F.3d 1259 (5