DEBRA M. BROWN, District Judge.
Before the Court is Krishun Monte Williams' pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254; and Respondents' joint motion to dismiss with prejudice, to which Williams responded in opposition. Doc. #1; Doc. #7; Doc. #8.
Williams is currently in the custody of the Mississippi Department of Corrections at the Central Mississippi Correctional Facility in Rankin County, Mississippi. Williams was convicted of conspiracy, armed robbery, and capital murder in the Circuit Court of Grenada County, Mississippi. Doc. #7 at Ex. 1. On August 20, 1999, she was sentenced to serve consecutive terms of five years (for conspiracy), life (for armed robbery), and life without parole (for capital murder). Id.
Williams, through counsel, appealed her conviction to the Mississippi Supreme Court, which affirmed her conviction on September 20, 2001. Williams v. State, 794 So.2d 1019 (Miss. 2001). Williams did not seek certiorari to the United States Supreme Court.
On October 15, 2015, Williams filed this petition for writ of habeas corpus. Doc. #1. In her petition, Williams challenges her detention pursuant to her 1999 Grenada County convictions. Id. at 2.
Id. at 6, 8-9, 11. Williams attaches several documents to her petition, including one purporting to be an "AFFIDAVIT OF FACT," affirming that she is "with the United States will be attending court in special appearance and will be acting in Propria Persona who will come in peace a non-belligerent, combative sentient Godly being," and a supposed "AMNESTY OATH." Id. (unnumbered at 17-18).
On April 7, 2016, Respondents moved to dismiss Williams' petition "with prejudice for failure to state a claim or, in the alternative, as untimely pursuant to 28 U.S.C. § 2244(d)."
Williams seeks relief under 28 U.S.C. § 2254. Doc. #1 at 2. This statute provides:
28 U.S.C. § 2254(a). "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition...." Rule 4, 28 U.S.C. foll. § 2254. In carrying out its screening function under Rule 4 of § 2254, the Court may raise the affirmative defense of a statute of limitations on its own, when such defense is plain from the face of the petition. Kiser v. Johnson, 163 F.3d 326, 328-29 (5th Cir. 1999).
The statute of limitations set forth in 28 U.S.C. § 2244 (which applies to the filing of a petition under § 2254) provides:
(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.
28 U.S.C. § 2244(d).
First, Williams' petition is time barred. Williams admits in her petition that she filed no petition for writ of certiorari to the United States Supreme Court. Doc. #1 at 4. Having exhausted direct review at the Mississippi Supreme Court on September 20, 2001, and having abandoned further direct review by the United States Supreme Court, Williams' conviction became final approximately fifteen years before she filed her October 15, 2015, petition. Accordingly, her petition is time-barred unless she tolled the one-year time limit by "properly fil[ing]" an application for state collateral review as contemplated by § 2244(d)(2) on or before the deadline to seek direct review by the United States Supreme Court, unless the deadline is equitably tolled. See, e.g., Flanagan v. Johnson, 154 F.3d 196, 201 n.1 (5th Cir. 1998) (applying 28 U.S.C. § 2244(d)(2), stating, "[A]ny time ... between the time that [petitioner's] conviction became final and the time that [her] state application for habeas corpus was properly filed must be counted against the one year period of limitation.").
Williams admits in her petition that she filed no application for state collateral review of her convictions, which Respondents confirm. Doc. #1 at 7, 8, 10, 11; Doc. #7 at 5-6. As to equitable tolling, Williams states that she did not "exhaust ... state remedies" for her Ground Three, or raise issues related to her Ground One and Ground Four in state collateral review, because she was "non compos mentis." Doc. #1 at 7, 10, 12. "Although mental illness may warrant equitable tolling, a petitioner (i) must make a threshold showing of incompetence and (ii) must show that this incompetence affected [her] ability to file a timely habeas petition[]." Jones v. Stephens, 541 F. App'x 499, 505 (5th Cir. 2013) (citing reported cases from sister circuits). Williams has alleged no facts to show that incompetence contributed to her failure to seek collateral review. This Court, therefore, will not equitably toll the one-year limit imposed by § 2244(d) based on mental incompetence and will dismiss Williams' petition as time barred. However, insofar as Williams' petition at least shows that she may possibly suffer from present mental incompetence, and Respondents have failed to respond to Williams' allegation of past mental incompetence, such dismissal will be without prejudice. See Coons v. Kirwin, No. 08-1926, 2008 WL 4845254, at *1 (D.N.J. Nov. 3, 2008) ("[T]his Court will dismiss the Complaint as time barred without prejudice to the filing of an amended complaint if Plaintiff believes ... he can show that equitable tolling is warranted.").
Even if Williams' petition was not time barred, this Court must still deny it. Williams admits that she failed to exhaust state court remedies for all four of her asserted grounds. Doc. #1 at 7-11. Accordingly, this Court may not grant Williams' petition. See 28 U.S.C. § 2254(b)(1), (1) (A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State...."). Though unexhausted but meritless claims may be denied on their merits, to do so is "within the district court's discretion." Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005) (citing 28 U.S.C. § 2254(b)(2)). Generally, courts will dismiss unexhausted claims without prejudice unless defendants argued in their answer that the claims were procedurally defaulted. See Clark v. Johnson, No. 99-40083, 2001 WL 43561, at *1 (5th Cir. Jan. 10, 2001) (reversing and remanding district court's dismissal with prejudice of unexhausted petition with instruction to dismiss without prejudice); Morace v. Cain, No. 99-30033, 1999 WL 706167, at *1 (5th Cir. Aug. 20, 1999) (affirming dismissal without prejudice for failure to exhaust state remedies). Cf. Chancellor v. Mississippi, 129 F. App'x 878, 880 (5th Cir. 2005) (vacating and remanding without-prejudice dismissal with instruction to dismiss with prejudice where respondents "argued in their answer in district court that [the] ... petition should be dismissed as procedurally defaulted"). Respondents do not argue that Williams' petition should be dismissed as procedurally defaulted. Therefore, this Court will deny Williams' petition without prejudice for the additional reason of failure to exhaust.
For the reasons above, Williams' petition [1] is