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Case 5:12-cv-00148-DCB-MTP Document 18 Filed 09/20/13 Page 1 of 5




FRANK SHAW, Warden of the
East Mississippi Correctional

CIVIL ACTION NO. 5:12-cv-148(DCB)(MTP)



This cause is before the Court on the defendants State of
Mississippi and Frank Shaw’s Motion to Dismiss (docket entry 11),
and on the Report and Recommendation of Magistrate Judge Michael T.
Parker (docket entry 15). Having carefully considered the motion
and the Report and Recommendation, and being fully advised in the
premises, the Court finds as follows:

On May 2, 2007, Knight pled guilty to attempted sexual battery
in the Circuit Court of Adams County, Mississippi, and was
sentenced to a term of 25 years in the custody of the Mississippi
Department of Corrections. On August 27, 2007, he filed a motion
for post-conviction relief in the Circuit Court of Adams County.
The Circuit Court denied Knight’s petition on October 9, 2009.

On December 16, 2009, Knight filed a federal habeas corpus
petition with this Court, pursuant to 28 U.S.C. § 2254. On
February 22, 2010, Knight’s petition was dismissed without
prejudice as premature, since the petitioner had not received a
decision from the Mississippi Supreme Court on his appeal from the

Case 5:12-cv-00148-DCB-MTP Document 18 Filed 09/20/13 Page 2 of 5

Circuit Court’s denial of post-conviction relief. The record
before this Court is not sufficient to determine what happened
next, but apparently there were subsequent rulings by both the
Mississippi Supreme Court and the Circuit Court of Adams County.
The present petition for federal habeas corpus relief pursuant
to 28 U.S.C. § 2254 was filed on November 6, 2012. On January 4,
2013, the respondents filed a Motion to Dismiss Pursuant to §
2244(d). Magistrate Judge Parker entered his Report and
Recommendation on August 1, 2013, recommending dismissal of the
petition because it is barred by the one-year limitations period of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”).

All federal habeas corpus petitions filed after April 24,
1996, the effective date of the AEDPA, are subject to a one-year
statutory limitations period. 28 U.S.C. § 2244(d)(1); Roberts v.
Cockrell, 319 F.3d 690, 693 (5th Cir. 2003). Generally, this
limitations period begins to run from the date on which a
petitioner’s state court conviction becomes “final,” either at the
conclusion of direct review or the expiration of the time for
seeking such review. 28 U.S.C. § 2244(d)(1)(A).

Section 2244(d)(1) also contains three exceptions (B, C and
D), none of which are applicable here. Knight does not allege that
he was impeded from filing his federal habeas petition by an
unconstitutional state action (B), that the Supreme Court has
announced a new constitutional right made retroactively applicable


Case 5:12-cv-00148-DCB-MTP Document 18 Filed 09/20/13 Page 3 of 5

to his case (C), or that he could not have discovered the factual
predicate of his claims through the exercise of due diligence until
a later time (D).

Knight was sentenced on his guilty plea on May 2, 2007. Under
present Mississippi law, there is no direct appeal from a guilty
plea. See Miss. Code Ann. § 93-35-101. However, at the time of
Knight’s guilty plea, the Mississippi Supreme Court recognized an
exception to this prohibition, allowing an appeal within thirty
days of the sentencing order when the issue concerned an allegedly
illegal sentence. See, e.g., Acker v. State, 797 So.2d 966 (Miss.
2001). (This exception has since been eliminated for guilty pleas
taken after July 1, 2008. See Seal v. State, 38 So.3d 635 (Miss.
App. 2010)). Therefore, at the latest, pursuant to Roberts v.
Cockrell, 319 F.3d 690 (5th Cir. 2003), Knight’s conviction became
final when his thirty-day period for seeking review of the sentence
expired, which was on June 1, 2007. The one-year limitations
period for filing a federal habeas petition would therefore expire
on June 2, 2008 (since June 1, 2008, fell on a Sunday).

The one-year limitations period is tolled, however, while a
petitioner’s state post-conviction review “is pending.” 28 U.S.C.
§ 2244(d)(2); see Grooms v. Johnson, 208 F.3d 488, 489 (5th Cir.
1999). Once the state post-conviction review is complete, the
limitations period resumes. Lawrence v. Florida, 549 U.S. 327,
331-32 (2007).


Case 5:12-cv-00148-DCB-MTP Document 18 Filed 09/20/13 Page 4 of 5

In this case, Knight’s one-year limitations period began on
June 1, 2007, but was tolled beginning August 27, 2007, when he
filed his state court motion for post-conviction relief. In their
Motion to Dismiss, the respondents admit that “if Knight filed a
‘properly filed’ application for post-conviction relief (‘PCR’) as
contemplated by 28 U.S.C. § 2244(d)(2) on or before June 2, 2008,
it would toll the limitations period.” Motion to Dismiss, p. 3.
However, the respondents then conclude that “Knight’s motion for
PCR was filed outside the one-year time limitation period
prescribed by the AEDPA,” and that “the statute of limitations for
his federal habeas petition is not tolled for the pendency of his
PCR.” Id.

Because the respondents fail to acknowledge Knight’s August
27, 2007, state court motion for post-conviction relief, and
because the present record is incomplete regarding subsequent
proceedings in the state courts, this Court cannot determine the
extent of statutory tolling under 28 U.S.C. § 2244(d)(2), and the
respondents’ Motion to Dismiss must be denied without prejudice so
that a more complete record can be made.

IT IS HEREBY ORDERED that the defendants State of Mississippi
and Frank Shaw’s Motion to Dismiss (docket entry 11) is DENIED
without prejudice;

Insofar as a more thorough record must be made by the parties,


Case 5:12-cv-00148-DCB-MTP Document 18 Filed 09/20/13 Page 5 of 5

the Report and Recommendation cannot be adopted at this time.

SO ORDERED, this the 20th day of September, 2013.

/s/ David Bramlette