     Case: 09-60186     Document: 00511216076          Page: 1    Date Filed: 08/26/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 26, 2010

                                     No. 09-60186                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MORRIS R. FRITH,

                                                   Petitioner - Appellant
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS,

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:08-CV-484


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Morris R. Frith, Mississippi prisoner #R0419, appeals the dismissal of his
28 U.S.C. § 2254 petition as untimely. He argues that the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) limitations period did not expire
because he had filed a motion to reconsider his sentence in state court. We
granted a certificate of appealability (“COA”) to determine whether Frith’s



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                       No. 09-60186

motion to reconsider his sentence prevented the statute of limitations from
running or tolled the limitations period under 28 U.S.C. § 2244(d)(1) or (d)(2).1
For the following reasons, we AFFIRM the district court’s dismissal of Frith’s
habeas petition as time-barred.
                         I. Factual & Procedural Background
       Frith pleaded guilty to attempted rape, armed robbery, and grand larceny.
On February 19, 1997, Frith was sentenced to serve consecutive sentences of ten
years imprisonment for attempted rape, ten years imprisonment for armed
robbery, and five years imprisonment for grand larceny. On February 28, 1997,
Frith filed a motion to reconsider his sentence in the Mississippi circuit court.
The court apparently never ruled on the motion. Frith did not file a direct
appeal.
       On February 10, 2000, Frith filed a petition for state habeas relief in
Mississippi circuit court. The court held an evidentiary hearing and
subsequently denied relief. The state appeals court affirmed on October 2, 2007,
and denied Frith’s petition for rehearing on February 5, 2008. The Mississippi
Supreme Court initially granted Frith’s petition for writ of certiorari, but
dismissed that petition on June 9, 2008, as improvidently granted.
       On August 6, 2008, Frith filed the instant § 2254 petition in federal
district court. The magistrate judge issued a report recommending that Frith’s
petition be dismissed as untimely. The magistrate judge concluded that, under
§ 2254(d)(1), the statute of limitations began running on March 21, 1997, thirty
days after Frith pleaded guilty, and expired on March 23, 1998. The magistrate
judge determined that Frith’s motion to reconsider his sentence was not a



       1
         We denied Frith a COA on the issue of whether the limitations period should be
equitably tolled. On appeal, we address only the narrow issue on which the COA was granted;
all other grounds for relief are not properly before this court. See Kiser v. Johnson, 163 F.3d
326, 327 n.1 (5th Cir. 1999).

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motion for post-conviction or other collateral relief under § 2244(d)(2) because
it requested reconsideration of the sentence and did not collaterally challenge
the merits of the guilty plea or the sentence imposed. The magistrate judge
further stated that Frith’s application for state habeas relief did not toll the
limitations period because it was not filed until February 10, 2000, well after the
one-year limitations period expired on March 23, 1998.
      Frith filed objections to the magistrate judge’s report and recommendation,
arguing that his motion to reconsider his sentence sought collateral relief and
that the motion prevented the limitations period from running under § 2244(d).
The district court overruled Frith’s objections and adopted the magistrate judge’s
report and recommendation. Following the district court’s denial of Frith’s
motions for reconsideration and for a COA, Frith moved for a COA in this court.
We granted a COA solely on the issue of “whether the motion to reconsider his
sentence prevented the statute of limitations from beginning to run or tolled the
period pursuant to 28 U.S.C. § 2244(d)(1) or (2).”2
                              II. Standard of Review
      We review a district court’s denial of habeas relief on procedural grounds
de novo. Larry v. Dretke, 361 F.3d 890, 893 (5th Cir. 2004).          AEDPA, which
governs Frith’s petition, established a one-year statute of limitation for federal
habeas petitions brought by state prisoners.         28 U.S.C. § 2244(d)(1).      The
limitations period usually begins to run from the date the state court judgment
becomes final after direct appeal, or the time for seeking such review expires.
§ 2244(d)(1)(A). Under § 2244(d)(2), however, the limitations period is tolled
during the time in which “a properly filed application for State post-conviction
or other collateral review” is pending. Whether the AEDPA time limits have



      2
        In the same order, we also granted Frith’s motion for leave to proceed in forma
pauperis.

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been satisfied is a question of federal, rather than state, law. Roberts v. Cockrell,
319 F.3d 690, 693 (5th Cir. 2003).
                                    III. Discussion
      Frith asserts that his motion to reconsider his sentence prevented the
statute of limitations from running or tolled the statute of limitations under
§2244(d)(1) or (d)(2). We disagree.
A. Section 2244(d)(1)(A)
      Under § 2244(d)(1)(A), a state court judgment becomes final at “the
conclusion of direct review or the expiration of the time for seeking such review.”
Roberts, 319 F.3d at 693; Jimenez v. Quarterman, 129 S. Ct. 681, 685 (2009).
The Supreme Court has held that “direct review cannot conclude for purposes
of § 2244(d)(1)(A) until the availability of direct appeal to the state courts and
to [the Supreme Court] has been exhausted.” Jimenez, 129 S. Ct. at 685 (internal
quotation marks and citations omitted). “If the conviction does not become final
by the conclusion of direct review, it becomes final by ‘the expiration of the time
for seeking such review.’” Roberts, 319 F.3d at 694 (quoting § 2244(d)(1)(A)).
      In this case, Frith did not seek direct review of his guilty plea.
Accordingly, his judgment of conviction became final on March 21, 1997, thirty
days after he was sentenced on his guilty plea. See M ISS. R. A PP. P. 4(a) (stating
that a defendant has thirty days to file a notice of appeal from the date of entry
of the criminal judgment). Thus, the one-year statute limitations for AEDPA
purposes began running on March 21, 1997, and concluded on March 23, 1998.3




      3
         The Respondent contends, and the magistrate judge and district court agreed, that
the limitations period was extended for two days because the limitations period otherwise
would have expired on a Saturday.

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       Frith asserts that his habeas petition was nonetheless timely under
§ 2244(d)(1)(A) because he filed a motion for reconsideration in the state court.4
Construing Frith’s brief generously, Frith is arguing that because his motion for
reconsideration was never ruled upon and has been pending for over thirteen
years, his      state-court     judgment       never     became      final for     purposes      of
§ 2244(d)(1)(A).
       This argument lacks merit. While the Mississippi circuit court did not
rule—and apparently has not yet ruled—on Frith’s motion for reconsideration,
Mississippi law makes clear that the circuit court lacked jurisdiction to decide
the motion because it was filed after the term of the court ended.                             The
Mississippi circuit court’s term ended on February 26, 1997, and Frith did not
file his motion for reconsideration until February 28, 1997. Accordingly, the
circuit court lacked jurisdiction to entertain Frith’s motion for reconsideration
and the motion did not affect the court’s entry of final judgment. See Ducote v.
State, 970 So. 2d 1309, 1314 (Miss. Ct. App. 2007) (holding that the circuit court
lacked jurisdiction to entertain the prisoner’s motion to reconsider his sentence
because “[a] judge may not alter or vacate a sentence once the term of court the
defendant was sentenced in has ended, thus [the petitioner] was four days late,
for jurisdictional purposes, in filing his motion. Further, this motion could not
be considered ‘pending’ under [Mississippi law] because the motion was not filed
before the term of court ended”).5 Accordingly, we conclude that Frith’s motion




       4
        Frith did not argue in the district court and does not argue on appeal that his habeas
petition is timely under any of the other provisions set forth in § 2244(d)(1)(B)-(D).
Accordingly, we do not address the applicability of these provisions.
       5
         Frith does not argue that Mississippi courts have jurisdiction to entertain motions
for reconsideration filed after the term of the court has ended or that such a motion would,
under Mississippi law, affect the finality of Frith’s conviction. Accordingly, this case is distinct
from the issue we confronted in Wilson v. Cain, 564 F.3d 702, 706 (5th Cir. 2009).

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for reconsideration did not prevent the statute of limitations from beginning to
run under § 2244(d)(1)(A).
B. Section 2244(d)(2)
      Frith also argues that his motion for reconsideration was a motion for
post-conviction relief, tolling the statute of limitation under § 2244(d)(2). Section
2244(d)(2) provides that the one-year statute of limitations is tolled during the
pendency of an “application for State post-conviction or other collateral review.”
Under Mississippi law, post-conviction relief is available only if the prisoner
alleges one of nine enumerated grounds.             M ISS. C ODE A NN. § 99-39-5(1)
(2007)(specifying grounds).
      Frith did not allege any grounds for post-conviction relief in his motion for
reconsideration; rather, he simply requested—without explanation—that the
Mississippi circuit court reconsider his sentence.        Because Frith’s motion for
reconsideration did not request post-conviction relief under Mississippi law, the
motion did not toll the statute of limitations under § 2244(d)(2). See Gaddy v.
Brewer, No. 1:01-CV-59, 2010 WL 3025027, at *3 (S.D. Miss. July 30, 2010)
(“Gaddy did not make any of these allegations [contained in § 99-39-5(1)] in his
second Motion to Reconsider Sentence; rather, he merely requested that the
Court follow the district attorney’s recommendation and afford him leniency . .
. . Therefore, his motion was not a motion for post-conviction relief under
Mississippi law, and the motion did not toll the limitations period pursuant to
Section 2244(d)(2).”).6
      Frith asserts that other Mississippi courts have construed a motion to
reconsider a sentence as a motion for post-conviction relief. But those cases are
easily distinguished because, in those cases, the motion, while styled as a motion


      6
         Because we conclude that Frith’s motion for reconsideration was not a motion for
“post-conviction or other collateral review,” we need not consider whether his motion was
properly filed.

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for reconsideration, raised claims seeking post-conviction relief under § 99-39-
5(1). See Ducote, 970 So. 2d at 1312 (construing the motion for reconsideration
as a motion for post-conviction relief where the motion, inter alia, asserted that
the defendant’s guilty plea was not voluntary or intelligent); Houston v. State,
840 So. 2d 818, 819 (Miss. Ct. App. 2003) (“[W]e find that review of the
Houstons’s motion for reconsideration of sentence falls under M ISS. C ODE A NN.
§ 99-39-5 concerning post-conviction relief . . . .”); Moore v. State, 859 So. 2d
1018, 1019 (Miss. Ct. App. 2003) (construing prisoner’s declaratory judgment
action asserting that his prior conviction was void as a motion for post-conviction
relief under M ISS. C ODE A NN. § 99-39-5).
       By contrast, Frith’s motion simply asked for reconsideration of his
sentence without citing any reasons, grounds, statutes, or rules.7 Because his
motion for reconsideration of his sentence did not collaterally attack his sentence
or otherwise raise grounds for post-conviction relief, his motion did not toll
AEDPA’s statute of limitations under § 2244(d)(2).
                                       IV. Conclusion
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       7
         The State points the court to the decision of the Eleventh Circuit in Alexander v. Sec’y,
Dep’t of Corr., 533 F.3d 1291, 1297 (11th Cir. 2008) (holding that a motion to review the
sentence was not a motion for postconviction or collateral relief) and cites Robinson v. Golder,
443 F.3d 718, 720-21 (10th Cir. 2006) (concluding that a motion for reduction of sentence
under Colorado Rule of Criminal Procedure 35(b) was a tolling motion). While other circuits
have disagreed about whether motions for reduction or review of a sentence constitute tolling
motions, no circuit has held that a bare motion for reconsideration—without citation to a state
statute or rule and containing no specified grounds for relief—is sufficient to toll the statute
of limitations under § 2244(d)(2). We express no opinion on whether the outcome in this case
would change if Frith’s motion for reconsideration contained more detail.

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