ROY PERCY, Magistrate Judge.
This matter comes before the court on the motion [23] by the Respondents to dismiss the instant petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 as untimely filed. In the alternative, the Respondents argue that Mr. Sanders did not exhaust his state remedies before proceeding in federal court, as he has not presented his claims to the Mississippi Supreme Court for review. Mr. Sanders argues that the court should consider his petition, despite its untimeliness and procedural deficiencies, as he is actually innocent of the crime of his conviction — possession of contraband (tobacco) in a prison facility. As set forth below, it appears to the court that he is correct, as tobacco is not one of the enumerated items in the definition of "contraband" in the statute under which Mr. Sanders was convicted.
Mr. Sanders pled guilty to the crime of possession of contraband (tobacco) in a prison facility:
Miss. Code Ann. § 47-5-193 (emphasis added).
Miss. Code Ann. § 47-5-191. Absent from the statutory definition of "contraband," however, is any mention of tobacco.
Violation of § 47-5-193 is a felony punishable by:
Miss. Code Ann. § 47-5-195.
Indeed, the trial court sentenced Mr. Sanders to the statutory maximum of fifteen years' imprisonment, credited him with time served, and suspended the remainder of the sentence, provided that Sanders "does not violate any laws of the United States, State, County or City and complies with the conditions of Post Release Supervision. . . ." Doc. 23-2. Sanders, however, violated the terms of his supervised release; the court revoked the 15 years of supervised release and imposed a sentence of 5 years' imprisonment, followed by five years of supervised release. Doc. 23-4. The new sentence runs consecutive to all sentences previously imposed. Id. The other provisions of the original sentencing order were unchanged. Id.
The Respondents argued in their motion to dismiss, Mr. Sanders' petition is untimely under one-year federal habeas corpus limitations period set forth in 28 U.S.C. § 2244(d)(1)(A), as it was filed approximately 920 days after the one-year deadline expired. They appear to be correct, however, as discussed below, Mr. Sanders has made a powerful showing that he is actually innocent of the crime of his conviction, which provides a path through which the court may address the merits of the instant petition. Thus, the court may not rule upon the instant motion to dismiss until first deciding the issue of actual innocence.
Mr. Sanders' conviction became final on January 25, 2013, when he was sentenced on his guilty plea, as Mississippi law does not permit a direct appeal from a plea of guilty, and he did not file any motions for state post-conviction collateral relief. The limitations period for seeking post-conviction collateral relief in Mississippi is three years, which sets Mr. Sanders' deadline for seeking such relief to January 25, 2016. Miss. Code Ann. § 99-39-5. As such, it appears that Mr. Sanders can no longer exhaust his administrative remedies in state court. If an inmate seeking habeas corpus relief fails to exhaust an issue in state court — and no more avenues exist to do so — under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5
Actual innocence, if proved, serves as a means of avoiding the AEDPA one-year statute of limitations, as well as the doctrine of procedural default. Perkins, supra. In that case, Mr. Perkins was convicted of first-degree murder and was sentenced to life in prison. More than eleven years after his conviction became final, he filed a federal petition for a writ of habeas corpus alleging that trial counsel was ineffective. He tried to overcome the one-year limitations period under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), asserting newly discovered evidence of actual innocence implicating someone else as the murderer. The district court held that, even if the evidence was "newly discovered," Mr. Perkins had not shown that he acted diligently. The district court also found that Mr. Perkins had not shown that, considering all of the evidence, no reasonable juror would have convicted him. The Sixth Circuit reversed, holding that Perkins was entitled to present his ineffectiveness claim, even though he had not diligently pursued his rights.
"[A]ctual innocence, if proved, serves as a gateway through which a prisoner may pass whether the impediment is a procedural bar, as in Schlup [v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)], or House [v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)], or, as in this case, expiration of the statute of limitations." Perkins, supra, at 1928. The Court cautioned, however, that "tenable actual-innocence gateway pleas are rare," and that in order for a petitioner to meet the threshold requirement, he must persuade the district court that, "`in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Perkins, 133 S.Ct. at 1928, 1935-36 & n.4 (emphasis added) (quoting Schlup, 513 U.S. at 329). "The gateway should open only when a petition presents `evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'" Perkins, 133 S.Ct. at 1928, 1935-36 & n.4 (quoting Schlup, 513 U.S. at 316). The actual innocence showing based upon newly discovered evidence excuses a procedural bar; it does not constitute an independent substantive claim. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L. Ed. 2d 203 (1993); Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en banc).
As for diligence, the Court held that a petitioner's unjustifiable delay is not an absolute bar to relief, but is merely "a factor in determining whether actual innocence has been reliably shown." The Court added an important caveat: "A showing that delay was part of a deliberate attempt to manipulate the case, say by waiting until a key prosecution witness died or was deported, might raise a different ground for withholding equitable relief." Perkins, 133 S. Ct. at 1936.
The instant case differs from Perkins, Herrera, and Sistrunk in that a finding of actual innocence depends, not upon discovery of new evidence, but instead upon what appears to be a gross misunderstanding of a Mississippi criminal statute: whether tobacco constitutes "contraband" under Miss. Code Ann. § 47-5-193. It appears that the prosecutor, defense attorney, and even the trial judge misapplied the criminal statute during Mr. Sanders' change of plea hearing — and permitted him to plead guilty to a nonexistent felony — possession of tobacco in a detention facility.
The Mississippi Supreme Court looks to § 47-5-191 to determine the precise definition of contraband under § 47-5-193, holding, "The term `contraband' is defined by Mississippi Code Annotated section 47-5-191 (Rev.2004). . . ." Amos v. State, 44 So.3d 1058, 1060 (Miss. Ct. App. 2010) (determining that, under Miss. Code Ann. § 47-5-191, "contraband" includes "coin or currency"). As set forth above, however, tobacco is not among the many items the statute defines as contraband.
The Mississippi statute governing possession in a detention facility of items prohibited by the Mississippi Department of Corrections Commissioner (rather than by statute) is Miss. Code Ann. § 47-5-192:
Authority to prohibit items; possession by employees and visitors
Miss. Code. Ann. § 47-5-192. This statute, which leaves to the MDOC Commissioner the task of identifying non-allowable items in a detention facility, is a misdemeanor, with a maximum penalty of one years' incarceration — and appears to be carefully crafted so that the word "contraband" does not appear, so as not to conflict with the specific definition of "contraband" in the previous section in the Mississippi Code. From long experience with pro se prisoner cases, the court knows that tobacco is, indeed, an "item, the possession of which by offenders is prohibited. . . ." Id. Thus, it appears to the court that Mr. Sanders, by possessing tobacco in the Itawamba County Jail, should have faced — at most — misdemeanor charges under Miss. Code Ann. § 47-5-192.
If a petitioner pled guilty and later seeks to challenge his plea on a ground that has been procedurally defaulted, he may be entitled to a hearing on the merits if he demonstrates "cause and actual prejudice" or actual innocence. Fairman v. Anderson, 188 F.3d 635, 644 (5
Nearly all the authority discussing claims of actual innocence involve "newly discovered evidence" which would tend to exonerate the petitioner. See, e.g., Perkins, supra. That is not, however, what Mr. Sanders alleges here. According to Mr. Sanders' arguments in the present case, no one involved in the plea process understood the elements of the crime with which he was charged — and to which he pled guilty. Bousley is the case which most closely approximates the present one, though Bousley involved the Supreme Court's interpretation of a statute that differed from the interpretations of several courts of appeal. See, generally, Bousley, supra. The Court held in Bousley that, in a case where neither the petitioner, "nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged, . . . [the] petitioner's plea would be . . . constitutionally invalid." Bousley, 523 U.S. at 618. On the incomplete record now before the court, that appears to be the situation Mr. Sanders faces.
A colorable claim of actual innocence in a federal habeas corpus proceeding is rare, but Mr. Sanders appears to have made one in the instant case. However, the court is loath to make a definitive ruling on the issue of actual innocence based upon on the incomplete record now available. The court cannot rule upon the pending motion to dismiss without first deciding whether Mr. Sanders has made a sufficient showing of actual innocence to overcome both the untimeliness of his petition — and the fact that the doctrine of procedural bar precludes the court from considering his habeas corpus claims. The court will therefore provide the parties and opportunity to brief the issue of actual innocence.
It is unclear whether the State in this case declined to prosecute other, more serious, charges as part of Mr. Sanders' plea agreement, and, under Bousley, supra, this fact bears on the proof Mr. Sanders must provide to establish actual innocence. Strangely, there is not a single mention of the precise criminal statute Mr. Sanders was charged with violating in the criminal trial and revocation documents provided by either Mr. Sanders or the State. Neither the prosecutor, defense counsel, nor the trial court identified the actual Code section of the charges in any of these documents: the 29-page transcript of the plea colloquy, criminal information, waiver of indictment, sentencing order, petition to revoke post-release supervision, MDOC Notice of Criminal Disposition, affidavit regarding violation of post-release supervision, or the Warrant for Mr. Sanders' arrest.
Mr. Sanders identifies Miss. Code Ann. § 47-5-193 as the section in several places in his filings, but none of the State's documents provided thus far do so. The prosecutor did, however, state the minimum and maximum penalties for the offense during the plea colloquy, and those match the penalties set forth in Miss. Code Ann. § 47-5-195 (which establishes the penalties for possession of contraband in a detention facility under § 47-5-193).
As colorable claims of actual innocence are extremely rare, there is little authority guiding the court on how to proceed from this point. The most rational course the court can chart is to provide ample time for both the State and Mr. Sanders to present evidence and argument regarding the claim of actual innocence — and its effect on the present case.
The court thus
