Waters v. Fairley

• Decision Date: 22 December 2021
• Docket Number: Civil Action 2:21CV82 HSO-LGI
• Parties: KENDRICK WATERS PETITIONER v. BOBBY FAIRLEY RESPONDENT
• Court: U.S. District Court — Southern District of Mississippi

KENDRICK WATERS PETITIONER
v.
BOBBY FAIRLEY RESPONDENT

Civil Action No. 2:21CV82 HSO-LGI

United States District Court, S.D. Mississippi, Eastern Division

December 22, 2021

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

LAKEYSHA GREER ISAAC, UNITED STATES MAGISTRATE JUDGE

Kendrick Waters seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent asserts that the petition is time-barred pursuant to 28 U.S.C. § 2244(d) under the Antiterrorism and Effective Death Penalty Act of 1996. After a review of the record and the applicable law, the undersigned recommends that the petition be dismissed with prejudice.

Nearly six years ago, Waters entered a guilty plea in the Circuit Court of Jasper County, Mississippi to second-degree murder. He was sentenced on August 3, 2016, to a 30-year term of imprisonment with 20 years to serve in the custody of the Mississippi Department of Corrections (“MDOC”), followed by 5 years of post-release supervision and another 5 years of unsupervised post-release supervision. Aggrieved, Waters filed a motion for post-conviction collateral relief in the Mississippi Supreme Court on December 11, 2017, challenging his guilty plea. A financial authorization form attached to the motion was dated September 6, 2017. As grounds for relief, Waters asserted, inter alia, that his guilty plea was involuntary and defective, that his plea should be set aside based on newly discovered evidence, and his counsel was ineffective. The Mississippi

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Supreme Court dismissed the motion without prejudice to Waters refiling it in the Jasper County Circuit Court-the court of proper jurisdiction. See Miss Code Ann. § 99-39-7 (2014); Jackson v. State, 67 So.3d 725, 730 (Miss. 2011) (trial court should exercise initial jurisdiction over the post-conviction proceedings of defendants who plead guilty); Martin v. State, 556 So.2d 357, 359 (Miss. 1990) (“In cases where the prisoner has entered a plea of guilty, the trial court has exclusive, original jurisdiction to hear and determine a petition for post-conviction relief.”).

On May 4, 2018, Waters filed his post-conviction motion in the Jasper County Circuit Court, and it was subsequently denied on December 18, 2018. A petition for writ of mandamus filed by Waters in the interim was dismissed as moot by the Mississippi Supreme Court on January 30, 2019. On September 15, 2020, the Mississippi Court of Appeals affirmed the trial court's denial of Waters's post-conviction motion. Waters v. State, 309 So.3d 39, 42 (Miss. Ct. App. 2020), reh'g denied (Jan. 12, 2021), cert. denied, 314 So.3d 1162 (Miss. 2021). A subsequent motion for rehearing and petition for writ of certiorari were denied. The instant petition, signed by Waters on May 12, 2021, was stamped as “filed” in this Court on June 4, 2021.

The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations on state prisoners filing a federal habeas petition. Under 28 U.S.C. § 2244(d)(1), AEDPA provides that the statute of limitations shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review

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(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(d)(1)(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)(1) and (2). Thus, unless the narrow exceptions of § 2244(d)(1)(B)-(D) apply, a federal habeas petition must be filed within one year of the final judgment of the defendant's conviction, subject to tolling for the period when a properly filed motion for post-conviction relief is pending in state court. See Madden v. Thaler, 521 Fed.Appx. 316 (5th Cir. 2013). AEDPA's statute of limitations period may also be equitably tolled if a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing.” Holland v. Fla., 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (internal quotations and citations omitted); see also Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (equitable tolling may apply to extend the one-year statute of limitations period, but only in rare and exceptional circumstances).

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Mississippi law prohibits prisoners who plead guilty from directly appealing to the Mississippi Supreme Court. Notwithstanding the statutory prohibition, the Mississippi Supreme Court has historically carved out an exception permitting appeals from a guilty plea within 30 days for challenges to the legality of the sentence. See Sanders v. Cabana, No. 2:04CV273-P-A, 2005 WL 1240784 (N.D. Miss. May 19, 2005). Miss. Code Ann. § 99-35-101^[1] has now been amended to expressly prohibit appeals when the defendant enters a plea of guilty. As a result, state courts no longer apply the 30-day exception to guilty pleas entered after July 1, 2008, the effective date of the amendment. See Seal v. State, 38 So.3d 635, 638 (Miss. Ct. App. 2010); Burrough v. State, 9 So.3d 368, 374 (Miss. 2009) (noting that guilty pleas entered prior to the 2008 amendment should be analyzed in accordance with the court's interpretation of this section as it existed).

Waters entered his guilty plea after the effective date of the amendment. As such, he cannot be credited with the 30-day period for direct appeals granted to petitioners who pled guilty prior to July 1, 2008. See Roberts v. Cockrell, 319 F.3d 690 (5th Cir. 2003). His conviction therefore became final on August 3, 2016, the date he was sentenced by the trial court. To toll the statute of limitations, he was required to file a properly filed motion for post-conviction collateral relief in state court on or before August 3, 2017. Because Waters did not file a state post-conviction motion prior to that date, AEDPA's

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statute of limitations period ran uninterrupted from August 3, 2016, through August 3, 2017. None of his state court post-conviction filings, including his motion for post-conviction collateral relief, tolled the statute of limitations because they were filed after August 3, 2017. See Scott, 227 F.3d at 263 (holding “state habeas application did not toll the limitation period under § 2244(d)(2) because it was not filed until after the period of limitation had expired”) (emphasis in original)); Villegas v. Johnson, 184 F.3d 467, 472 (5th Cir. 1999) (expired limitations period cannot be revived by filing a state habeas petition). See also Green v. Banks, No. 1:18CV180 HSO-LRA, 2019 WL 2497227, at *1 (S.D.Miss. Jan. 28, 2019), report and recommendation adopted, No. 1:18CV180-HSO-LRA, 2019 WL 1167809 (S.D.Miss. Mar. 13, 2019), certificate of appealability denied sub nom. Green v. Errington, No. 19-60219, 2019 WL 4876449 (5th Cir. Aug. 30, 2019). Absent statutory or equitable tolling, his federal habeas petition is untimely.

In his initial response to the motion to dismiss, Waters denied that his petition was untimely, citing the financial authorization form attached to his post-conviction motion as evidence in support.^[2] Though Waters failed to date his post-conviction motion, his financial authorization form...