Crowell v. State of Mississippi

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 31, 2002
• Docket: 01-60587
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60587 Summary Calendar

KELVIN CROWELL,

Petitioner-Appellant,

versus

STATE OF MISSISSIPPI; ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS,

Respondents-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:01-CV-48-LN -------------------- July 30, 2002

Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Kelvin Crowell, Mississippi prisoner # T2165, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition as

time barred, pursuant to 28 U.S.C. § 2244(d). A certificate of

appealability (COA) was granted on two issues, whether the

district court was correct (1) in determining that the state

court judgment revoking Crowell’s probation and imposing sentence

became final under 28 U.S.C. § 2244(d)(1) on the date it was

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-60587 -2-

issued and (2) in determining that tolling ceased under 28 U.S.C.

§ 2244(d)(2) when the state appellate court rendered its decision

as to Crowell’s state postconviction application.

Crowell asserts that the probation-revocation judgment did

not become final under § 2244(d)(1)(A) until November 28, 2000,

the date the Mississippi Court of Appeals affirmed the denial of

postconviction relief, or until the expiration of the 30 days to

seek review of that decision under MISS. R. APP. P. 4(a). Under

28 U.S.C. § 2244(d)(1), the one-year limitations period for

filing a federal habeas petition begins to run from “the date on

which the judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review.”

28 U.S.C. § 2244(d)(1)(A). Mississippi law does not provide for

direct review of an order revoking probation and suspension of

sentence; it provides only for collateral review of such a

judgment. Beasley v. State, 795 So.2d 539, 540 (Miss. 2001);

MISS. CODE ANN. §§ 99-39-1 et seq. Thus, the district court did

not err in determining that the probation-revocation judgment was

“final” for purposes of 28 U.S.C. § 2244(d)(1) on the date it is

imposed because there is no provision for direct review of that

judgment.

Crowell argues that pursuant to § 2244(d)(2), the

limitations period should have been tolled while his state

postconviction application was pending, including the entire

period allotted for timely state appellate review of the No. 01-60587 -3-

disposition of that application. The district court held that

the limitations period was tolled while Crowell’s state

postconviction application was pending, from its filing on August

18, 1999, through the appellate court’s affirmance of the trial

court’s denial on November 28, 2000. There is no indication in

the record that Crowell sought further review of the Court of

Appeals’ decision affirming the denial of his state

postconviction application.

Crowell did not assert in the district court that the

limitations period should have been tolled during the time he

could have sought (but did not seek) further review of the

appellate court’s decision until the time for seeking such review

expired. Accordingly, this issue is reviewed under the plain

error standard. See Douglass v. United Serv. Auto Ass’n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

Although this court has stated in dicta that a state

postconviction application is no longer pending when the state

limitations period for seeking further review has expired, see

Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001), this court

has not so held. See Williams v. Cain, 217 F.3d 303, 311 n.9

(5th Cir. 2000) (declining to address the issue). Accordingly,

the district court did not commit plain error by not tolling the

limitations period during any time Crowell could have filed for

further review (but did not). No. 01-60587 -4-

Moreover, even if the period during which Crowell could have

sought further appellate review is considered, we would still

find his federal petition untimely. Crowell argues that he had

30 days to seek review of the decision of the Mississippi Court

of Appeals under MISS. R. APP. P. 4(a). This rule is inapplicable

since it applies to appeals from the trial court to the

Mississippi Supreme Court. Under MISS. R. APP. P. 17(b), review

in the Mississippi Supreme Court of a decision of the Court of

Appeals requires a party to first file a motion of rehearing in

the Court of Appeals, and under MISS. R. APP. P. 40(a), the party

has only 14 days to file such a motion. By our reckoning,

Crowell’s federal suit was untimely even if an additional 14 days

are added to the tolled period.

Crowell also argues that the principle of comity requires

that his § 2254 petition be considered timely and that the

district court violated his due process rights by dismissing his

application as time-barred. Although Crowell raised these issues

in his COA motion, because a COA was not granted on these issues,

they will not be addressed. See Lackey v. Johnson, 116 F.3d 149,

151 (5th Cir. 1997).

AFFIRMED.