Opinion
CIVIL ACTION 98-1021-BH-M.
April 26, 2000.
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be dismissed as time barred and that judgment be entered in favor of Respondent Willie Thomas and against Petitioner Robert Ferrell pursuant to 28 U.S.C. § 2244 (d).
Petitioner was convicted of two counts of rape second degree in the Circuit Court of Baldwin County on April 20, 1995 for which he received a sentence of twelve years on each count in the state penitentiary, to be served concurrently (Docs. 1, 9). Ferrell did not appeal the conviction or the sentence (Doc. 1, p. 3; Doc. 9, p. 3). Petitioner filed a Rule 32 petition on July 16, 1997 (Doc. 9, Exhibit A, p. 1). Following the denial of the petition by the lower court, the Alabama Court of Criminal Appeals affirmed the denial, finding most of the claims barred by the two—year statute of limitations and the balance of the claims to be without merit (Doc. 9, Exhibit F). Petitioner filed a complaint with this Court on October 14, 1998 raising the following claims: (1) He did not knowingly and intelligently enter into his guilty plea; (2) he was denied a competency hearing; (3) the Court did not have jurisdiction over him; (4) his attorney rendered ineffective assistance of counsel; (5) he was denied the right to move for a new trial; (6) he was denied certain requested discovery information; and (7) he was denied his right to appeal (Doc. 1).
Respondent has answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 9, ¶¶ 11-15). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA) which amended, in pertinent part, 28 U.S.C. § 2244 (Doc. 13). The specific provision states as follows:
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 the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.28 U.S.C. § 2244(d)(1)(A).
The AEDPA became effective on April 24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). The Eleventh Circuit Court of Appeals held that the one—year limitations period would begin to run on that date, April 24, 1996, for potential habeas petitioners whose convictions had already become final by way of direct review. Goodman, 151 F.3d at 1337; Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 (llth Cir. 1998). In other words, the Eleventh Circuit Court of Appeals established a "grace period" through April 23, 1997 so that federal and state criminal defendants would not lose the opportunity to seek federal habeas review.
Since there was no direct appeal of the conviction or sentence, Petitioner's conviction became final on April 20, 1995, the day on which he was sentenced for the two convictions. As such, Ferrell's conviction became final prior to the effective date of the AEDPA.
Petitioner's habeas corpus petition was not filed in this Court until October 14, 1998, more than a year after the grace period had expired. Petitioner had filed a Rule 32 petition in state court on July 16, 1997, nearly three months after the grace period had expired. Therefore, the Rule 32 petition did not toll the one-year period of limitations, as extended by the grace period, because the limitation period had already run by the time Petitioner filed his Rule 32 petition. See Rashid v. Khulman, 991 F. Supp. 254, 259 (S.D.N.Y. 1998) (dismissing a § 2254 petition as being barred by the one—year statute of limitation because ["o]nce the limitations period is expired, collateral petitions can no longer serve to avoid a state of limitations"). Clearly, Petitioner's habeas corpus petition was filed well beyond the one-year grace period and filed in violation of 28 U.S.C. § 2254 (d).
Petitioner has filed one responsive pleading in this Court since Respondent asserted that this action was time-barred (Doc. 10). Though Ferrell speaks to this roadblock and asserts that this Court should excuse his procedural default, he nas not alleged — much less proven — any State-created impediment which prevented his filing for relief earlier. The Court finds that Petitioner has provided no cause for ignoring the dictates of the Anti-Terrorism and Effective Death Penalty Act of 1996: this action is time-barred.
For the reasoning stated herein, it is recommended that this habeas petition be dismissed as time-barred, and that judgment be entered in favor of Respondent Willie Thomas and against Petitioner Robert Ferrell on all claims.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.
JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that JUDGMENT be entered in favor of Respondent Willie Thomas and against Petitioner Robert Ferrell on all claims.
DONE this 31st day of May, 2000.
ORDER
After due and proper consideration of all pleadings in this file, and there having been no objections filed, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is adopted as the opinion of this Court.
It is ORDERED that this petition be DENIED and that this action be DISMISSED.
DONE this 31st day of May, 2000.