Green v. Banks, Civil No. 1:18cv180-HSO-LRA
| Decision Date | 13 March 2019 |
| Docket Number | Civil No. 1:18cv180-HSO-LRA |
| Parties | JESS LEE GREEN, #144724 PETITIONER v. JACQUELYN BANKS, Superintendent RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
This matter is before the Court on Petitioner Jess Lee Green's Objections [17] to the Report and Recommendation [15] of United States Magistrate Judge Linda R. Anderson and Respondent Jacquelyn Banks' Motion to Dismiss [6]. After thoroughly reviewing Petitioner's Objections [17], the Magistrate Judge's Report and Recommendation [15], Respondent's Motion to Dismiss [6], related pleadings, the record as a whole, and relevant legal authority, the Court concludes that Petitioner's Objections [17] should be overruled, that the Magistrate Judge's Report and Recommendation [15] should be adopted as the finding of the Court, and that Respondent's Motion to Dismiss [6] should be granted. Petitioner Jess Lee Green's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus should be dismissed with prejudice.
On August 4, 2008, Petitioner Jess Lee Green ("Petitioner" or "Green") entered guilty pleas on charges filed against him in two separate criminal cases in the Circuit Court of Jackson County, Mississippi. See Order [6-1] at 1-2; Green v. State, No. 2017-CP-01285-COA, 2019 WL 667866 (Miss. Ct. App. Feb. 19, 2019); see also Green v. State, 242 So. 3d 176, 178 (Miss. Ct. App. 2017), reh'g denied (Feb. 6, 2018), cert. denied, 246 So. 3d 68 (Miss. 2018). On each of the five counts in the first case, number 2007-11,197(3), and on each of the three counts in the second case, number 2007-11,198(3), the trial court sentenced Petitioner to serve a term of imprisonment of thirty (30) years in the custody of the Mississippi Department of Corrections, to be served concurrently with each other and without the possibility of parole or early release. Order [6-1] at 1-2. The Sentencing Order was filed November 10, 2008. Id. at 1.
On or about July 27, 2015, nearly seven years after he entered his guilty pleas, Petitioner filed in the Jackson County Circuit Court a petition for post-conviction collateral relief pertaining to both criminal cases. See R. [5-1] at 9-38.1 On June 30, 2016, the State court entered an Order dismissing Green's Petition in part and requiring that the State provide the Court "with information and/or documentation as to the nature of the 'trace evidence' attempted to be collected [inone of the] assault case[s] . . . ." R. [5-3] at 76. After the State responded indicating that there was no such evidence actually collected, see id. at 77, the State court entered a Final Judgment of Dismissal on July 8, 2016, denying the remaining claim asserted by Green, id. at 88. Petitioner appealed the dismissal, and the Mississippi Court of Appeals affirmed. The Court of Appeals denied rehearing on February 6, 2018, and the Mississippi Supreme Court denied Petitioner's petition for writ of certiorari on May 10, 2018. Green v. State, 242 So. 3d 176, 181 (Miss. Ct. App. 2017), reh'g denied (Feb. 6, 2018), cert. denied, 246 So. 3d 68 (Miss. 2018).
On May 22, 2018, Petitioner signed and placed a Petition for Writ of Habeas Corpus [1] in the prison mailing system, which was received by the Clerk of Court and filed on May 29, 2018. See Pet. [1] at 1-15. The Petition in this case relates to the five charges to which Petitioner pled guilty in the first of his criminal cases, number 2007-11,197(3). See id.2
Respondent filed a Motion [6] to Dismiss, arguing that the Petition was not timely filed under 28 U.S.C. § 2244(d), such that it should be dismissed with prejudice. Mot. [6] at 1-7. Alternatively, Respondent asserted that the Court should dismiss the Petition for failure to exhaust available State court remedies.Id. at 7-9.
The Magistrate Judge entered a Report and Recommendation [15] on January 28, 2019, concluding that the Petition was time-barred by 28 U.S.C. § 2244(d)(1)(A), and that Petitioner had not presented any evidence warranting the application of statutory or equitable tolling. See R. & R. [15] at 8. The Magistrate Judge recommended that the Petition be dismissed with prejudice. Id. at 8-9.
Petitioner has submitted Objections [17] to the Report and Recommendation [15], arguing that he is entitled to equitable tolling of the statute of limitations, such that his Petition should be deemed timely. Objs. [17] at 1-4. Respondent has filed a Response [18] to Petitioner's Objections [17], contending that the Petition "was filed almost eight and a half (8 ½) years too late," Resp. [18] at 1, and that Petitioner "provides no 'rare and exceptional' circumstance to warrant equitable tolling," id. at 7. Respondent maintains that Petitioner's Objections [17] should be overruled, that the Magistrate Judge's Report and Recommendation [15] should be adopted, and that the Petition should be dismissed with prejudice. Id.
Because Petitioner has filed written Objections to the Magistrate Judge's Report and Recommendation [15], the Court "make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Rule 8(b) of Rules Governing Section 2254 Cases in the United States District Courts. Under a denovo review, the district court makes its "own determination based upon the record and unrestrained by the findings and conclusions of the magistrate." United States v. Wilson, 864 F.2d 1219, 1222 (5th Cir. 1989); see also, e.g., Lambert v. Denmark, Civil No. 2:12-cv-74-KS-MTP, 2013 WL 786356, *1 (S.D. Miss. Mar. 1, 2013) (). In conducting a de novo review, the Court is not "required to reiterate the findings and conclusions of the magistrate judge." Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993).
Having conducted a de novo review of the record, the Court agrees with the conclusions reached by the Magistrate Judge and will adopt the Report and Recommendation [15].
28 U.S.C. § 2244(d).
Petitioner pleaded guilty to all five counts in State court and was sentenced on or about October 31, 2008. Order [6-1] at 1-2. The Sentencing Order was filed November 10, 2008. Id. at 1. Under Mississippi law, following entry of a guilty plea, a direct appeal is not permitted. See Miss. Code Ann. § 99-35-101.3 Petitioner's conviction therefore became final on November 10, 2008. In the absence of a "properly filed" application in State court for post-conviction or other collateral review, § 2244(d)(2) does not statutorily toll the limitations period. See 28 U.S.C. § 2244(d). Unless there is some other basis for tolling prior to November 10, 2009, the statute of limitations to file a federal habeas petition expired on that date pursuant to 28 U.S.C. § 2244(d)(1)(A).
The record reflects that Petitioner did not sign a petition for post-conviction collateral relief in State court until July 22, 2015, see R. [5-1] at 37, which was stamped filed by the court on July 27, 2015, id. at 9. This petition was not signed until nearly six years after the federal one-year statute of limitations had run. Unless some basis exists to toll the limitations period, Green's present Petition istime-barred. Petitioner contends in his Response [12] to the Motion to Dismiss and in his Objections [17] that equitable tolling applies.
Tolling under § 2244(d)(2) only excludes "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 . . . ." 28 U.S.C. § 2244(d)(2). Because Petitioner's State-court petition for post-conviction relief was not filed until after § 2244(d)'s one-year statute of limitations had expired in 2009, it did not toll the limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) ().
The Magistrate Judge determined that statutory tolling under § 2244(d)(2) did not apply, and Petitioner has not specifically objected to that finding in his Objections [17]. The Court agrees that § 2244(d)(2) is inapplicable here.
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