Walde v. Cain

• Court: District Court, S.D. Mississippi
• Decided: November 29, 2021
• Docket: 3:21-cv-00303
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION

NATHANIEL WALDEN1 PETITIONER

V. CIVIL ACTION NO. 3:21-CV-303-DPJ-FKB

BURL CAIN RESPONDENT

ORDER

Petitioner Nathaniel Walden is serving a life term pursuant to his October 2006 conviction in the Circuit Court of Holmes County, Mississippi. R&R [14] at 1. Walden filed this 28 U.S.C. § 2254 petition on April 13, 2021, alleging that he received ineffective assistance of counsel and that he was tried and convicted while mentally incompetent. Pet. [1] at 6–8, 10. Respondent Burl Cain filed a Motion to Dismiss [12], arguing that the habeas petition was untimely; Walden did not respond. The matter is now before the Court on the Report and Recommendation [14] of United States Magistrate Judge F. Keith Ball, who recommends the case be dismissed. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes, subject to statutory and equitable tolling, a one-year statute-of-limitations period for writs of habeas corpus under § 2254. 28 U.S.C. § 2244(d); Holland v. Florida, 560 U.S. 631, 649 (2010). That period is generally triggered when the state-court decision becomes “final.” § 2244(d)(1)(A); see Mot. [12] at 2–3. On direct appeal, Walden’s sentence was upheld, and certiorari was denied by the Mississippi Supreme Court on March 4, 2010. Walden v. Mississippi, 29 So. 3d 17 (Miss. Ct. App. 2008), cert. denied No. 2006-CT-02009-COA (Miss. Mar. 4, 2010). The state-court judgment thus became final on June 2, 2010, when the time to file

1 Walden varying spells his surname as “Walde” and “Walden.” See Mot. [12] at 1 n.1. an appeal to the United States Supreme Court elapsed. See 28 U.S.C. § 2101(c); R&R [14] at 2 (citing Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir. 2003)). Section 2244(d) does provide for statutory tolling: “The time during which a properly filed application for State . . . collateral review . . . is pending shall not be counted toward any period of limitation under this subsection.” § 2244(d)(2). Walden filed four petitions for post-

conviction relief in state court. Mot. [12] at 4–7. But the earliest petition was filed July 5, 2011, three days after the one-year limitations period elapsed. R&R [14] at 2 n.1. Judge Ball thus found the case ineligible for statutory tolling. Equitable tolling generally requires a litigant to establish “two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Judge Ball reviewed Walden’s filings, finding only one potential basis for tolling: Walden’s mental illness. R&R [14] at 3. Equitable tolling can be justified when the petitioner makes a threshold showing of incompetence and shows that the incompetence contributed to the delay. Id. (citing Jones v. Stephens, 541 F.

App’x 499, 505 (5th Cir. 2013)). But Walden submitted no evidence on either of these points. Id. Further, it is facially implausible that Walden’s mental illness could justify the extent of his delay—as Judge Ball noted, Walden was sufficiently competent to file a petition for collateral review in state court on July 1, 2011, yet this federal-court petition was not filed until more than a decade later. Id. (citing Collateral Relief Appl. [12-3]). The time for objections to Judge Ball’s Report and Recommendation has now passed; none have been submitted. Finding no error, the Court adopts Judge Ball’s recommendation. The Motion to Dismiss [12] is granted. This cause is dismissed. A separate judgment will be entered pursuant to Federal Rule of Civil Procedure 58. SO ORDERED AND ADJUDGED this the 29th day of November, 2021.

s/ Daniel P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE