Holmes v. Forniss et al (INMATE2)

Filing 12

ORDERED that on or before 11/7/2011 Petitioner shall show cause why his federal habeas petition should not be denied as it was not filed within the one-year limitation period established by 28 USC § 2244(d)(1). Signed by Honorable Judge Susan Russ Walker on 10/17/2011. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
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LARRY TYRONE HOLMES, #217 564,

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Petitioner,

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v.

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LEON FORNISS, WARDEN et al.,

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Respondents.
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1:11-CV-687-TMH
(WO)

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ORDER
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief
filed by Petitioner Larry Holmes on August 24, 2011. In this petition, Petitioner challenges
his convictions, pursuant to his plea of guilty, for first degree sodomy and first degree sexual
abuse entered against him by the Circuit Court for Houston County, Alabama, on June 4,
2001. The trial court sentenced Petitioner, as a habitual offender, to a twenty-five year
sentence on the sodomy conviction and a fifteen year sentence on the sexual abuse
conviction. The sentences were ordered to run concurrently. The Alabama Court of Criminal
Appeals affirmed Petitioner’s convictions in a memorandum opinion filed January 25, 2002
and issued a certificate of judgment on March 26, 2002. (Doc. No. 11, Exhs. A, B.) By
operation of law, Petitioner’s convictions became final on April 9, 2002.
Pursuant to the orders of this court, Respondents filed an answer in which they argue
that the instant habeas petition is barred by the one-year limitation period applicable to 28

U.S.C. § 2254 petitions. See 28 U.S.C. § 2244(d)(1).1 Respondents contend that because
Petitioner’s convictions became final in 2002- after the effective date of the statute of
limitations -- he must have filed his § 2254 petition within a year of these convictions
becoming final, exclusive of the time that any properly filed state post-conviction petition
was pending in the state courts. Respondents concede that Petitioner filed a Rule 32 petition
with the trial court in March 2006. They argue, however, that the petition did not toll the
one-year period of limitation because it was filed after expiration of the limitation period and
was, therefore, not pending as required by the provisions of 28 U.S.C. § 2244(d)(2) for
purposes of tolling the requisite time period. See Webster v. Moore, 199 F.3d 1256, 1259
(11th Cir. 2000); Tinker v. Moore, 255 F.3d 1331, 1333-1335 n.4 (11th Cir. 2001).
Upon review of the pleadings filed in this case and the law of this Circuit, it appears
that Petitioner’s § 2254 petition is precluded from review by this court as it was filed outside
the applicable period of limitation.
28 U.S.C. § 2244(d)(1)(A) directs that the limitation period for filing a 28 U.S.C. §
2254 petition begins to run on the date when the time for seeking direct review of the
challenged judgment expires. Petitioner was convicted, pursuant to his plea of guilty , of first
degree sodomy and first degree sexual abuse on June 4, 2001 in the Circuit Court for
Houston County, Alabama. He received resulting concurrent sentences of twenty-five years’
imprisonment and fifteen years’ imprisonment, respectively. Petitioner filed a direct appeal.
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Subsection (d) was added by the Anti-Terrorism and Effective Death Penalty Act of 1996
(the “AEDPA”). This Act became effective on April 24, 1996.
2

The Alabama Court of Criminal Appeals affirmed Petitioner’s convictions on January 25,
2002 and issued a certificate of judgment on March 26, 2002. Since Petitioner did not seek
further relief from the Alabama Supreme Court, he was not entitled to file a petition for
certiorari with the United States Supreme Court and the time for seeking review of his 2002
convictions, therefore, lapsed upon expiration of the time for filing a petition for writ of
certiorari with the Alabama Supreme Court -- fourteen (14) days from the issuance of the
certificate of judgment.2 Rule 39(b), Alabama Rules of Appellate Procedure; see Coates v.
Byrd, 211 F.3d 1225 (11th Cir. 2000), cert. denied, 531 U.S. 1166, 121 S.Ct. 1129 (2001); see
also Rule 13.1, Rules of the United States Supreme Court (a petition for writ of certiorari
may only be filed to review a judgment or order entered by a state court of last resort and
must be filed within ninety (90) days of the action undertaken by such state court). Thus,
Petitioner's convictions became final on April 9, 2002 and the one-year limitation period
contained in section 2244(d)(1)(A) began to run on this date and ran uninterrupted until the
limitation period expired on April 9, 2003.
28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this

2

Respondents’ contention that Petitioner’s convictions became final on March 26, 2002 upon
issuance of the Alabama Court of Criminal Appeals’ certificate of judgment fails to take into account the
fourteen days within which Petitioner could have filed a petition for writ of certiorari. Upon expiration of
the fourteen days within which Petitioner could have filed a petition for writ of certiorari after the appellate
court’s issuance of a certificate of judgment, his convictions became final.

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section.” Although Petitioner filed a Rule 32 petition, this petition was not pending during
the running of the limitation period as it was filed after expiration of this time period.
“[E]ven ‘properly filed’ state-court petitions must be ‘pending’ [during the one-year period
of limitation] in order to toll the limitations period. A state court petition . . . that is filed
following the expiration of the limitations period cannot toll that period because there is no
period remaining to be tolled.” Webster, 199 F.3d at 1259; see also Tinker, 255 F.3d at 1333,
1335. n.4 (11th Cir. 2001) (“[A] properly filed petition in state court only tolls the time
remaining within the federal limitation period.”). It is, therefore, clear that the state postconviction petition filed by Petitioner in March 2006 had no affect on the running of the
limitation period applicable to the instant federal habeas petition. Webster, 199 F.3d at 1259.
(Doc. No. 11, Exh. 3.)
Under the circumstances of this case as outlined in this order, the one-year period of
limitation contained in 28 U.S.C. § 2244(d)(1) expired prior to Petitioner filing the instant
§ 2254 petition. In light of the foregoing, it is
ORDERED that on or before November 7, 2011 Petitioner shall show cause why his
federal habeas petition should not be denied as it was not filed within the one-year limitation
period established by 28 U.S.C. § 2244(d)(1).

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DONE, this 17th day of October 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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