Versell v. Outlaw
| Decision Date | 17 June 2015 |
| Docket Number | Civil Action No. 3:14CV300 TSL-JCG |
| Parties | BENJAMIN VERSELL, #51464 PETITIONER v. WARDEN TIMOTHY OUTLAW RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
BEFORE THE COURT is the Application of Benjamin Versell ["Petitioner"] for Writ of Habeas Corpus [1] pursuant to Title 28, United States Code, Section 2254 filed April 10, 2014. On December 12, 2014, Warden Timothy Outlaw ["Respondent"] filed a Motion to Dismiss [19] pursuant to 28 U.S.C. § 2244(d). Petitioner filed a timely Response [20]. Having considered the Motion, Response, pleadings, records on file, briefs and arguments of the parties, and the relevant legal authority, the undersigned United States Magistrate Judge recommends that the Motion of the Respondent be granted.
On July 11, 2003, Petitioner entered pleas of guilty to the crimes of possession of marijuana and possession of cocaine with intent to sell, in the First Judicial District of the Circuit Court of Hinds County, Mississippi. Petitioner was sentenced to a term of three [3] years on the marijuana possession charges and to a term of twenty [20] years, as a second and subsequent offender, on the cocaine possession with intent to sell charge. Petitioner's sentences were ordered to runconsecutively in the custody of the Mississippi Department of Corrections.
On April 10, 2014, Petitioner filed the instant § 2254 Application asserting violations of his Constitutional Rights, including double jeopardy, ineffective assistance of counsel, entry of an involuntary guilty plea, and violation of his right to Due Process. § 2254 Petition [1], ¶ 12., at pp. 5-6, 8-9. Petitioner seeks the following relief: "immediate expulsion of expired sentence; reimbursement of non-violent offender status; and release for time served." Id. at p. 14. Respondent filed a Motion to Dismiss [19] pursuant to 28 U.S.C. § 2244(d). Petitioner filed a Response [20] in opposition to the Motion.
At the outset the Respondent notes that due to an administrative error, Petitioner was released and then re-arrested on a State Warrant to complete serving his sentences pursuant to the sentencing order. See State Warrant att. as Ex. "C" to Resp. Mot. to Dismiss [19-3]. In addition, with regard to Petitioner's parole eligibility, the Respondent has informed the Court that the Mississippi Department of Corrections ["MDOC"] performed an audit of Petitioner's earned time, and that "Versell's enhanced sentence has indeed expired and, therefore, he is now eligible for parole." Mot. to Dismiss [19] at p. 2. Respondent attached a copy of Petitioner's time sheet which reflects the correction and shows Petitioner became parole eligible as of July 13, 2009. See MDOC Timesheet att. as Ex. "B" to Mot. to Dismiss [19-2]. Based upon the record before the Court, Petitioner's claims regarding his parole eligibility are now moot. Respondent contends that theremainder of Petitioner's claims are barred by the applicable statute of limitations.
The Antiterrorism and Effective Death Penalty Act ["AEDPA"] provides in part as follows:
28 U.S.C. § 2244(d).
Under subsection (d)(1)(A), the "one-year period begins to run from the date on which the state court judgment became final by the conclusion of direct review or theexpiration of the time for seeking such review." Mark v. Thaler, 646 F.3d 191 (5th Cir. 2011)(internal citations and quotations omitted). A state court conviction is "final" when there is no further "availability of direct appeal to the state courts." Id.
In the present case, Respondent notes the statutory provision in place regarding the availability of a direct appeal following the entry of Petitioner's guilty plea:
However, at the time of Versell's plea, the Mississippi Supreme Court had carved out an exception, allowing an appeal from a guilty plea within thirty (30) days when the issue concerns an alleged illegal sentence. See Burns v. State, 344 So.2d 1189 (Miss. 1977); Trotter v. State, 554 So.2d 313 (Miss. 1989); Berry v. State, 722 So.2d 706 (Miss. 1998); Campbell v. State, 743 So.2d 1050 (Miss. App. 1999); and Acker v. State, 797 So.2d 966 (Miss. 2001). The Mississippi Court of Appeals has since recognized that this exception no longer applies to guilty pleas taken after the July 1, 2008, effective date of the new amendment to Mississippi Code Annotated §99-35-101 (Supp.2009). Seal v. State, 38 So.3d 635 (Miss. App. 2010).
Resp. Mot. to Dismiss [19], n. 4 at p. 4.
Respondent further concedes that because Versell's guilty plea was taken before the effective date of this amendment, he is entitled to the benefit of the earlier exception. Id.
The Fifth Circuit has explicitly held that the one year statute of limitations period begins to run from the date of the judgment of conviction. Flanagan v. Johnson, 154 F.3d 196, 199, n. 1 (5th Cir. 1998).
In the present case, the record clearly indicates that the §2244(d) tolling provision was not implicated. Petitioner unequivocally states that he has Petitioner's Resp. to Court's Order [13], at pp.1-2.
Inasmuch as Petitioner entered guilty pleas, he had no right to a direct appeal of his judgment of conviction after the statutory 30 day period. As such, his judgment of conviction became final on August 10, 2003, which is his sentencing date of July 11, 2003, plus the then existent statutory thirty day period. See MISS. CODE ANN. § 99-35-101 (1972).1 Pursuant to §2244, Petitioner had up and until August 10, 2004, within which to file a Petition for Habeas relief in this Court. The instant Petition was filed on April 10, 2014, some 3560 days after that date. Moreover, because Petitioner admittedly did not have a "properly filed" state post conviction motion/application as contemplated by 28 U.S.C. § 2244(d)(2) on or before August 10, 2004, the statute of limitations period was not tolled in this case. See 28 U.S.C. § 2244(d)(2). For these reasons, the undersigned is of the opinion that Versell's Petition is barred by the statute of limitations, and should be dismissed.
"The doctrine of equitable tolling preserves a plaintiff's claims when strictapplication of the statute of limitations would be inequitable." Alexander v. Cockrell, 294 F.3d 626, 629 (5th Cir. 2002). "To be entitled to equitable tolling, a petitioner has the burden of showing (1) that he had been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Clarke v. Rader, 721 F.3d 339, 344 (5th Cir. 2013) (internal citations and quotations omitted).
This Court has discretion as to whether to equitably toll the instant petition. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999). "Courts must consider the individual facts and circumstances of each case in determining whether equitable tolling is appropriate." Cockrell, 294 F.3d at 629.
The instant petition was filed over (9) years after the limitations deadline lapsed on August 10, 2004. Petitioner states that "none of these grounds have been presented [to the state's highest court] for lack of due diligence and indigence." Pet. [1] at p. 11. He further states that he:
Pet. Resp. to Order [13] at p. 1.
The Fifth Circuit has consistently held that:
[t]he doctrine of equitable tolling is applied restrictively and, as we have held repeatedly, is entertained only in cases presenting rare and exceptional circumstances where...
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