* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4.

-1- UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-60387

WILLIAM SMITH, JR.,

Petitioner – Appellant,

VERSUS

ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF

CORRECTIONS; SHERIFF OF LEAKE COUNTY, MISSISSIPPI, WARDEN OF LEAKE

COUNTY CORRECTIONAL FACILITY,

Respondents – Appellees.

Appeal from the United States District Court

For the Northern District of Mississippi

(1:01CV4-D-D)

March 28, 2002

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.

PER CURIAM: *

On October 13, 1998, William Smith, Jr. pleaded guilty in Mississippi state court to five

counts of receiving property by false pretenses. He was sentenced to serve five consecutive three-1 Although Mississippi law does not permit an appe al from a conviction by guilty plea, the

defendant who pleads guilty can appeal from the sentence imposed. S ee Campbell v. State

, 743 So.

2d 1050, 1052 (Miss. Ct. App. 1999).

2 Smith v. State , 773 So. 2d 410, 411 (Miss. Ct. App. 2000).

-2- year terms in the cust o dy of the Mississippi Department of Corrections and ordered to make

restitution in the amount of $19,363.36. Smith did not file a direct appeal from his conviction or his

sentence. 1

Smith filed a motion for post-conviction relief (“PCR”) in state court on February 4, 1999;

the circuit court denied the motion on March 2, 1999. On July 15, 1999, Smith filed a second PCR

motion, which was dismissed on its merits on September 8, 1999. Smith sought relief a third time

on January 18, 2000. The circuit court dismissed the motion, finding that it was a subsequent filing

to the motion it dismissed in September 1999. Smith appealed; on December 12, 2000, the

Mississippi Court of Appeals affirmed the dismissal on the grounds that Smith’s PCR mot ion was

successive and that his claims did not fall within one of the few statutory exceptions to the successive

motion bar. 2

Smith the n applied for federal habeas relief, contending that he was not informed of the

charges against him, that there was no factual basis for two counts to which he pleaded guilty, that

the restitution imposed on him was excessive, and that he received ineffective assistance of counsel.

He certified that he placed his habeas applic at io n in t he mail on December 27, 2000. The district

court dismissed the application as time-barred on April 16, 2001, and later denied Smith a certificate

of appealability (“COA”). But, on August 3, 2001, a member of this court granted Smith a COA on3 A COA may issue “only if the ap plicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a habeas petition on

procedural grounds without reaching the merits of the application, “a COA should issue whe n the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurist s of reason would find it debatable

whether the district court was correct in its procedural ruling.” S lack v. McDaniel , 529 U.S. 473,

484 (2000). As for Smith’s substantive claims of the denial of constitutional rights, this court granted

COA on his contentions that: (1) the trial court accepted his guilty plea without ascertaining that he

understood the nature of the charges against him; (2) the trial court accepted hi s pl

ea wi thout

establishing a factual basis for it; and (3) his counsel persuaded him to plead guilty by t elling him that

he would receive a certain sentence regardless of anything else he was told. The court granted COA

because Smith’s contentions could not be addressed without review of the state-court record.

4 M ISS

. C ODE A NN

. § 99-35-101 (2000). S ee Phillips v. Donnelly

, 216 F.3d 508, 509–10 (5th

Cir. 2000) (“Under Miss. Code Ann. § 99-35-101, a criminal defendant who pleads guilty has no right

to appeal his conviction.”).

5 See Campbell

, 743 So. 2d at 1052. S ee also M ISS

. R. A PP

. P. 4(a) (West 2001) (establishing

the 30-day period).

6 28 U.S.C. § 2244(d)(1)(A). The “exceptions” to this general rule, § 2244(d)(1)(B)–(D), are

not applicable to the present case.

-3- the issue whether the district court erred when calculating the limitations period. 3 The August 3 order

instructed the parties to brief the issue whether a conviction by guilty plea in Mississippi becomes final

for purposes of the limitations provision of 28 U.S.C. § 2244(d) on the date that the plea is entered,

as a guilty-plea conviction cannot be appealed, 4 or upon expiration of the 30-day period during which

an appeal from a sentence imposed following conviction by guilty plea may be taken. 5

Generally, a person in custody pursuant to the judgment of a state court has one year from

the date on which the judgment became final by the conclusion of direct review or the expiration of

t he time for seeking such review to file his federal habeas application. 6 “The time during which a

properl y filed application for State post-conviction or other collateral review with respect to the7 Id. § 2244(d)(2).

-4-

pertinent judgment or claim is pending shall not be counted toward any period of limitation . . . .” 7

Although this court has not determined when a conviction by guilty plea in Mississippi becomes final

for federal habeas limitations purposes, we do not have to decide this issue today because Smith’s

application was filed untimely under both possibilities identified in this court’s August 3 order

granting COA.

Smith’s limitations period was tolled 26 days during the pendency of his first PCR motion,

55 days during the pendency of the second PCR motion, and 329 days during the pendency of his

third motion, for a total of 410 days. If October 13, 1998, the date of conviction and sentencing, is

the date on which the limitation period began, then Smith used 396 days before filing his federal

application (114 days between the date the conviction became final and the filing date of the first PCR

motion; 135 days between the denial of the first PCR motion and the filing of the second motion; 132

days between the denial o f the second PCR motion and the filing of the third motion; and 15 days

between the denial of the third PCR motion and the filing of the federal application). If November

12, 1998 is the relevant date, which reflects expiration of the 30-day period for direct appeal of

Smith’s sentence, then he used a total of 366 days (84 days between the date the conviction became

final and the filing date of the first PCR motion; 135 days between the denial of the first PCR motion

and the filing of the second motion; 132 days between the denial of the second PCR motion and the

filing of the third motion; and 15 days between the denial of the third PCR motion and the filing of

the federal application), one day more than the one-year limitation period, before he submitted his

federal habeas application on December 27, 2000.

Thus, under either method, Smith’s federal petition was unt imely. Accordingly, we AFFIRM-5-

the district court’s dismissal of the petition as time-barred.

AFFIRMED.