592 F. App'x 313

James Allen HIGGINBOTHAM, Petitioner-Appellant v. Ron KING, Superintendent, Respondent-Appellee.

No. 13-60442.

United States Court of Appeals, Fifth Circuit.

Feb. 5, 2015.

James Allen Higginbotham, Leakesville, MS, pro se.

Jerrolyn M. Owens, Office of the Attorney General, Jackson, MS, for Respondent-Appellee.

Before REAVLEY, JONES, and ELROD, Circuit Judges.

*314PER CURIAM: *

James Allen Higginbotham, Mississippi prisoner # 149421, filed a 28 U.S.C. § 2254 petition challenging his conviction and life sentence for murder, which the district court dismissed as time barred. •We granted Higginbotham a certificate of ap-pealability (COA) to determine whether he is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) from October 9, 2009, the date he filed his motion for leave to file a motion for state postconviction relief (motion for leave) until May 30, 2013, the date of the final disposition of his postcon-viction claims. We review issues of law, including issues regarding statutory tolling, de novo and findings of fact for clear error. Manning v. Epps, 688 F.3d 177, 182 (5th Cir.2012); Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir.2007).

Because Higginbotham pleaded guilty to murder, he could not appeal his conviction or sentence. See Miss.Code Ann. § 99-35-101. Therefore, Higginbotham was not required to file a motion for leave in state court. See Miss.Code Ann. § 99-39-7. Because Higginbotham’s motion for leave was unnecessary under state law, it was not properly filed for purposes of § 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 9, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); Larry v. Dretke, 361 F.3d 890, 894-95 (5th Cir.2004). Furthermore, because Higginbotham’s motion for leave sought permission to proceed rather than review of his conviction and sentence, it did not trigger § 2244(d)(2) tolling.1 See Wall v. Kholi, 562 U.S. 545, 131 S.Ct. 1278, 1285-86, 179 L.Ed.2d 252 (2011); Moore v. Cain, 298 F.3d 361, 367 (5th Cir.2002).

Finally, Higginbotham’s motion for state postconviction relief, which was filed, at the earliest, on March 17, 2011, did riot serve to further toll the one-year limitation period, as the district court also concluded. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir.2000).

In light of the foregoing, the district court’s dismissal of Higginbotham’s § 2254 petition as time barred is AFFIRMED.

Higginbotham v. King
592 F. App'x 313

Case Details

Name
Higginbotham v. King
Decision Date
Feb 5, 2015
Citations

592 F. App'x 313

Jurisdiction
United States

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