James Higginbotham v. Ron King , 592 F. App'x 313 ( 2015 )

Case: 13-60442 Document: 00512927518 Page: 1 Date Filed: 02/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60442
United States Court of Appeals
Fifth Circuit
FILED
JAMES ALLEN HIGGINBOTHAM, February 5, 2015
Lyle W. Cayce
Petitioner-Appellant Clerk
v.
RON KING, Superintendent,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:12-CV-71
Before REAVLEY, JONES, and ELROD, Circuit Judges.
PER 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 appealability (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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-60442 Document: 00512927518 Page: 2 Date Filed: 02/05/2015
No. 13-60442
his postconviction 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 (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, 131 S. Ct. 1278, 1285-86 (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 not 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.
1 Even if Higginbotham’s motion for leave had triggered tolling, the statute of
limitations would have only been tolled for 67 days while the motion was pending, making
his § 2254 petition due on or before July 27, 2010. Higginbotham’s § 2254 petition was signed
on February 1, 2012 and stamped as “filed” on February 27, 2012.
2