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McCool v. Smith

United States District Court, D. Minnesota

March 11, 2019

Larry Jermaine McCool, Petitioner,
v.
Michelle Smith, Respondent.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON UNITED STATES MAGISTRATE JUDGE

         Petitioner Larry Jermaine McCool has filed a petition for a writ of habeas corpus challenging the validity of a conviction of a first-degree controlled-substance crime in Minnesota state court. See 28 U.S.C. § 2254. The petition is now before the Court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Because McCool's habeas petition is untimely, it is recommended that this matter be dismissed.

         McCool was convicted after a jury trial in April and May 2013. On November 24, 2014, the Minnesota Court of Appeals affirmed the conviction on direct appeal. See State v. McCool, No. A13-2128, 2014 WL 6608923 (Minn.Ct.App. Nov. 24, 2014). The Minnesota Supreme Court denied McCool's petition for review on January 20, 2015. McCool did not seek a writ of certiorari from the United States Supreme Court.

         On September 27, 2016, McCool filed a petition for post-conviction relief in the state courts. See Petition at 16 (Doc. No. 1). That petition was denied by the trial court as procedurally barred, and the denial was affirmed by the Minnesota Court of Appeals. See McCool v. State, No. A17-1303, 2018 WL 1462334 (Minn.Ct.App. Mar. 26, 2018).

         McCool was given until May 25, 2018, to file a petition for review with the Minnesota Supreme Court (an extension of the ordinary period for filing a petition for review under state law), but he failed to timely submit his petition for review by that date, and his appeal was dismissed.

         McCool now seeks federal habeas corpus relief on five grounds. An in-depth analysis of the merits of McCool's claims is unnecessary, though, because McCool's petition is plainly barred by the relevant statute of limitations. 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.

         The final two of those provisions are irrelevant here. None of McCool's claims asserts a newly recognized constitutional right; nor do any of his claims depend upon a factual predicate that could not have been discovered prior to the time of his direct appeal.

         Accordingly, the one-year limitations period for McCool is established by either § 2244(d)(1)(A) or § 2244(d)(1)(B).

         The date on which McCool's conviction became final is readily determinable. McCool's petition for review on direct appeal was denied by the Minnesota Supreme Court on January 20, 2015. McCool then had 90 days in which to file a petition for a writ of certiorari with the United States Supreme Court. He failed to do so. Under § 2244(d)(1)(A), then, McCool reached “the conclusion of direct review” on April 20, 2015-the deadline for filing a petition for a writ ...


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