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Jihad v. Roy

United States District Court, D. Minnesota

September 29, 2014

HANIFI MARLOW JIHAD, f/k/a Marlow DeVette Jones, Petitioner,
v.
TOM ROY, Commissioner, State of Minnesota, Respondent.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter is before the undersigned United States Magistrate Judge on petitioner Hanifi Marlow Jihad's petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. See ECF No. 1. The petition has been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. This Court has conducted a preliminary review of Jihad's habeas petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Based on that review, this Court recommends dismissal of Jihad's petition.

Jihad, a Minnesota state prisoner, was convicted by a jury in March 1995 of one count of first-degree murder and one count of attempted first-degree murder. See State v. Jones, 556 N.W.2d 903, 905 (Minn. 1996). As a result, Jihad was sentenced to life imprisonment for the murder conviction and 180-month term of imprisonment for the attempted-murder conviction, with those terms to run concurrently. Id. The Minnesota Supreme Court affirmed Jihad's conviction and sentence on October 31, 1996. Id. at 914.

Since that direct appeal, Jihad has filed four motions for post-conviction relief in state court, the most recent of which was denied in February 2014.[1] See ECF No. 6 at 1-2 (setting forth procedural history). None of these motions has been successful. Jihad also filed a petition for a writ of habeas corpus in this District in 1999. See Jihad v. Hvass , No. 99-CV-1416 (DSD/JMM) (D. Minn. filed Sept. 17, 1999). That 1999 petition was dismissed as untimely, and the dismissal of that petition was affirmed by the Eighth Circuit. See Jihad v. Hvass, 267 F.3d 803 (8th Cir. 2001).

Jihad now brings another petition for a writ of habeas corpus under § 2254. In this petition, Jihad purports to raise seven grounds for relief. That said, several of these enumerated grounds are duplicative; one of these enumerated grounds is merely a plea that his petition not be dismissed for untimeliness or failure to exhaust state remedies; and many other potential reasons for vacating Jihad's conviction and sentence are mentioned over the course of his 22-page petition and 57-page memorandum.

An in-depth analysis of the merits of each of these claims is unnecessary in this case, because Jihad's petition is plainly time-barred. Under 28 U.S.C. § 2244(d)(1):

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period 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;
(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.

For the vast majority of Jihad's claims, § 2244(d)(1)(A) unquestionably applies, as those claims do not involve previously undiscovered factual predicates nor seek to assert newly recognized constitutional rights, and no impediment created by state action prevented Jihad from raising his claims in the past. Jihad was therefore required to bring his claims within one year of the date on which judgment became final in his case. The Minnesota Supreme Court affirmed Jihad's conviction and sentence on October 31, 1996. See Jones, 556 N.W.2d at 914. The judgment in Jihad's criminal case became final 90 days thereafter. See Jihad, 267 F.3d at 804-05. Even taking into account periods in which Jihad had motions for post-conviction relief pending in state court during which time the statute of limitations for habeas relief is tolled under § 2244(d)(2) the limitations period for most of Jihad's claims has long expired. Indeed, Jihad's first petition for habeas relief under § 2254 was denied for untimeliness in 2000. Id. Obviously, Jihad's claims for relief are no more timely 14 years later, and they must therefore be dismissed under § 2244(d)(1)(A) as time-barred.

The only potential exception is Jihad's claim that his trial counsel was ineffective during the plea-bargain stage of his criminal proceedings. Jihad argues that he could not bring this claim until after the Supreme Court's decision in Lafler v. Cooper, 132 S.Ct. 1376 (2012), and thus that the 1-year limitations period for those claims should begin to run as of the date of that opinion under § 2244(d)(1)(C), and not the date the judgment in his criminal case became final under § 2244(d)(1)(A).

This claim, like each of the other claims raised by Jihad, is nevertheless time-barred. Jihad is incorrect when he asserts that Lafler announced a new constitutional right made retroactive on collateral review. See United States v. Echerivel, 500 Fed.App'x 568, 569 (8th Cir. 2013) (per curiam) (finding that Lafler did not announce a new rule of constitutional law). Section 2244(d)(1)(C) therefore does not apply, as that provision resets the 1-year limitations period for habeas claims only if the right asserted by the petitioner "has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Jihad was required to bring this claim of ineffective ...


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