Opinion
Civil Action 98-1188-AH-M
April 27, 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 Ron Jones and against Petitioner Wendell Hightower pursuant to 28 U.S.C. § 2244(d). 9p5
Petitioner was convicted of rape first degree and burglary first degree in the Circuit Court of Mobile County on March 29, 1995 for which he received a life sentence in the state penitentiary on each count, to be served concurrently (Docs. 1, 9). Hightower appealed the conviction, which was affirmed by the Alabama Court of Criminal Appeals in a memorandum opinion (Doc. 9, Exhibit B). The certificate of final judgment was issued on February 12, 1996 (Doc. 9, Exhibit A, p. 6).
Petitioner filed a Rule 32 petition on August 18, 1997 (Doc. 9, Exhibit A, pp. 7, 19). Following the denial of the petition by the lower court, the Alabama Court of Criminal Appeals affirmed the denial, finding the claims to be either barred by the two — year statute of limitations or without merit (Doc. 9, Exhibit D).
Petitioner filed a complaint with this Court on November 25, 1998 raising the following claims: (1) Petitioner's trial and appellate attorneys both rendered ineffective assistance; and (2) the trial court was without jurisdiction to render judgment against — and impose sentence on — — him (Doc. 3).
respondent states that Petitioner did not file this complaint until February 10, 1999 (Doc. 3), Petitioner initiated this action on November 25, 1998 with the filing of a copy of his appeal brief from his State Rule 32 petition (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, pp. 5-6). Respondent refers to provisions of the Anti — Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA) which amended, in pertiment 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 (11th 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.
Petitioner's conviction became final on February 12, 1996, the day on which the certificate of final judgment was issued. As such, ightower's conviction became final prior to the effective date of the AEDPA. 9p5
Petitioner's habeas corpus petition was not filed in this Court until November 25, 1998, more than a year after the grace period had expired. Petitioner had filed a Rule 32 Petition in state court on August 18, 1997, nearly four 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). 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 Ron Jones and against Petitioner Wendell Hightower on all claims.