MEMORANDUM OPINION

MICHAEL P. MILLS, District Judge.

This matter comes before the court on the pro se petition of Henry Gibb, Jr. 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. Gibbs has responded to the motion, and 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 will be dismissed as untimely filed.

Facts and Procedural Posture

On April 29, 2015, Henry Gibbs, Jr. pled guilty to armed robbery. See Exhibit A1 (Petition to Enter a Guilty Plea, Washington County Circuit Court, Cause No. 2010-0016).2 On the same day, the trial court entered its Sentencing Order, which was filed on May 5, 2015, and sentenced Gibbs "to serve a term of thirteen (13) years, such time shall be served as eight years in the custody of the Mississippi Department of Corrections, followed by five years Post-Release Supervision[.]" Exhibit C (Sentencing Order and guilty plea transcript, Washington County Circuit Court, Cause No. 2010-0016).

Mr. Gibbs attempted to appeal his guilty plea on May 22, 2015; however, on August 18, 2015, the Mississippi Court of Appeals dismissed the appeal for want of jurisdiction, noting that "challenges to guilty pleas must be made through motions for post-conviction relief in the trial court." See Exhibit D (citing Miss. Code Ann. § 99-35-101). Mr. Gibbs then filed a petition for a writ of habeas corpus in this court on September 21, 2015, which was dismissed on April 4, 2016, for failure to exhaust his state court remedies. See Exhibit E (Docket and Order of Dismissal, No. 4:15-cv-00131-DMB-DAS (N.D. Miss, April 4, 2016)).

Gibbs then filed a Motion for Post-Conviction Collateral Relief (the PCR motion) in the Circuit Court of Washington County, Mississippi, which he signed on May 10, 2016, and the court stamped "filed" on May 12, 2016.3 See Exhibit F. The Circuit Court of Washington County, Mississippi denied Mr. Gibbs' PCR motion on December 1, 2016, finding that he "failed to state a valid claim for relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act." Exhibit G. Gibbs appealed, and the Mississippi Court of Appeals affirmed the denial of his PCR motion, finding that "[n]one of Gibbs's claims are grounds for relief under Miss. Code Ann. § 99-39-5." Exhibit H (Gibbs v. State, 248 So.3d 874 (Miss. Ct. App. 2018), reh'g denied April 24, 2018, cert. denied July 19, 2018).

One-Year Limitations Period

Decision in this case is governed by 28 U.S.C. § 2244(d), which provides:

By statute, there is no direct appeal from a guilty plea in Mississippi. See Miss. Code Ann. § 99-35-101. As such, Mr. Gibbs' judgment became final on May 5, 2015, the date on which the circuit court's order was filed sentencing him on his guilty plea. See Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). Hence, the deadline for Mr. Gibbs to seek federal habeas corpus relief became May 5, 2016 (May 5, 2016 + 1 year). Mr. Gibbs' attempted direct appeal was not "properly filed," as appeals of guilty pleas are not permitted under Mississippi law, and the Mississippi Supreme Court could not exercise subject matter jurisdiction over the matter. Mr. Gibbs did not file a proper application for state post-conviction collateral relief as contemplated by 28 U.S.C. § 2244(d)(2) on or before May 5, 2016, to toll the period of limitation;4 hence, the deadline for seeking federal habeas corpus relief remained May 5, 2016. See Flanagan v. Johnson, 154 F.3d at 201; Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998).

Equitable Tolling Is Not Applicable in This Case

"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 (5th Cir.2000) (per curiam) (internal quotations omitted). The one-year limitations period of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 28 U.S.C. § 2255(f) is not jurisdictional; thus, it is subject to equitable tolling. United States v. Wynn, 292 F.3d 226, 230 (5th Cir.2002). For this reason, a district court may toll the AEDPA limitations period. Id. at 229-30.

The decision whether to apply equitable tolling turns on the facts and circumstances of each case. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000); see also Alexander v. Cockrell, 294 F.3d 626, 628 (5th Cir.2002) (per curiam). However, a court may apply equitable tolling only "in rare and exceptional circumstances." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998); see also Minter v. Beck, 230 F.3d 663, 666-67 (4th Cir.2000) ("[E]quitable tolling of the AEDPA's one year limitation period is reserved for those rare instances where — due to circumstances external to the party's own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.") (quotation omitted).

The petitioner bears the burden of establishing that equitable tolling is warranted. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh'g, 223 F.3d 797 (2000) (per curiam). In order to satisfy his burden, the petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" of timely filing his § 2255 motion. Lawrence v. Florida, 549 U.S. 327, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007). A petitioner's delay of even four months shows that he has not diligently pursued his rights. Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). "Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Davis v. Johnson, 158 F.3d 806, 810-811 (5th Cir. 1998). Mr. Gibbs has not provided any reason to support equitable tolling in the instant case.

The Mississippi Court of Appeals Order, dated August 18, 2015, dismissed Mr. Gibbs' appeal of his guilty plea for want of subject matter jurisdiction, stating that "challenges to guilty pleas must be made through motions for post-conviction relief in the trial court." See Exhibit D. At that time, Mr. Gibbs still had over eight months (until May 5, 2016), during which a "properly filed" application filed could have tolled the statute of limitations under 28 U.S.C. § 2244(d). Instead, Mr. Gibbs filed a Petition for Writ of Habeas Corpus in this court on September 21, 2015, which was dismissed on April 4, 2016, for failure to exhaust his state court remedies. See Exhibit E. However, even a properly filed federal habeas corpus petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 172 (2001). In dismissing the petition, the court urged Mr. Gibbs to act with diligence to exhaust his state court remedies. See Exhibit E. Thus, despite warnings from both state and federal courts, Mr. Gibbs chose to prematurely pursue federal habeas corpus relief — a course of action that does not toll the federal habeas corpus limitations period.

The Fifth Circuit has rigorously enforced the one-year AEDPA period of limitation, holding:

Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir. 2002). With such clear guidance, this court must also apply the limitations period strictly.

The Instant Petition Was Untimely Filed

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 (5th Cir. 1999), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564, 146 L.Ed.2d 467 (2000) (citing Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998)). In this case, the federal petition was filed sometime between the date it was signed on August 2, 2018, and the date it was received and stamped as "filed" in the district court on August 7, 2018. Giving the petitioner the benefit of the doubt by using the earlier date, the instant petition was filed over two years after the May 6, 2016, filing deadline. As discussed above, he does not allege any "rare and exceptional" circumstance to warrant equitable tolling. Ott v. Johnson, 192 F.3d 510, 513-14 (5th Cir. 1999). For these reasons, the State's motion to dismiss will be granted, and the instant petition for a writ of habeas corpus will dismissed with prejudice and without evidentiary hearing as untimely filed under 28 U.S.C. § 2244(d). A final judgment consistent with this memorandum opinion will issue today.

SO ORDERED.