Cummings v. Jones, et al (INMATE 3)

Filing 10

ORDER directing that on or before April 5, 2012, Cummings shall show cause why his federal habeas petition should not be denied as it was not filed within the one-year limitation period, as further set out. Signed by Honorable Judge Wallace Capel, Jr on 3/15/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
HUBERT CALVIN CUMMINGS,
# 2164165,
Petitioner,
v.
KENNETH JONES, et al.,
Respondents.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 1:12cv89-TMH
(WO)

ORDER
The respondents have filed an answer (Doc. No. 8) in which they argue, among other
things, that the pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by
Alabama inmate Hubert Calvin Cummings (“Cummings”) on January 25, 2012, is barred by
the one-year limitation period applicable to § 2254 petitions. See 28 U.S.C. § 2244(d)(1)
(setting forth one-year limitation period). The respondents contend that because the state
conviction Cummings challenges became final in 2009 – after the April 1996 enactment of
the statute of limitations – Cummings must have filed any federal habeas petition within one
year of the convictions’ becoming final, exclusive of the time any properly filed state postconviction petition related to the conviction was pending in the state courts. The respondents
acknowledge that Cummings challenged his conviction by a state post-conviction
Ala.R.Crim.P. 32 petition filed in the trial court. However, the respondents maintain that,
even allowing a tolling of the limitation period during the pendency of state-court

proceedings on Cummings’s Rule 32 petition, the one-year federal limitation period expired
well before Cummings filed the instant federal habeas petition. 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). The respondents therefore maintain that Cummings’s petition is time-barred under
28 U.S.C. § 2244(d)(1)(A).
Title 28 U.S.C. § 2244(d) provides:
(1) 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 –
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
(2) The 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 subsection.
Exhibits submitted by the respondents indicate that Cummings was convicted
2

following a jury trial in the Houston County Circuit Court on May 20, 2008, on charges of
first-degree assault. The trial court imposed a sentence of 30 years in prison on July 11,
2008. On March 6, 2009, on direct appeal, Cummings’s conviction and sentence were
affirmed by the Alabama Court of Criminal Appeals. (Exh. E.) Cummings’s application
for rehearing was denied on March 27, 2009. (Exh. F.) He did not seek certiorari review in
the Alabama Supreme Court. The Alabama Court of Criminal Appeals issued a certificate
of judgment in his case on April 15, 2009. (Exh. G.)
Under the circumstances, Cummings’s conviction became final on April 15, 2009,
upon the Alabama Court of Appeals’ issuance of the certificate of judgment.

See

Ala.R.App.P. 40(c). Accordingly, the one-year federal limitation period for Cummings to
file a § 2254 habeas petition began to run on that same date.
On or around August 11, 2009, Cummings filed a Rule 32 petition in the trial court
challenging his conviction, thereby tolling the limitation period for filing a § 2254 petition.
(Exh. H at 26.) At that time, the one-year limitation period for filing a § 2254 petition had
run for 118 days. The trial court denied Cummings’s Rule 32 petition on June 1, 2010.
Cummings appealed, and on December 10, 2010, the Alabama Court of Criminal Appeals
affirmed the trial court’s judgment. (Exh. K.) Cummings’s application for rehearing was
denied on January 7, 2011. (Exh. L.) He did not seek certiorari review in the Alabama
Supreme Court. The Alabama Court of Criminal Appeals issued a certificate of judgment
in his case on January 26, 2011. (Exh. M.)

3

Title 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
section.” Cummings’s Rule 32 petition was pending in the state courts from ..., until January
26, 2011. On January 26, 2011, Cummings had 247 (365 - 118) days remaining within
which to file a timely federal habeas petition. The limitation period began to run again for
Cummings on January 26, 2011, and ran unabated before expiring 247 days later, on
September 30, 2011.
As noted above, Cummings did not file his § 2254 habeas petition until January 25,
2012. Under the circumstances, it appears that the one-year limitation period contained in
28 U.S.C. § 2244(d)(1) expired before Cummings his petition. Accordingly, it is
ORDERED that on or before April 5, 2012, Cummings 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), and for the other reasons asserted in the
respondents’ answer.
Done this 15th day of March, 2012.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

4