Mayo v. Hetzel et al (Inmate 3)

Filing 12

ORDER that on or before September 7, 2012, Mayo shall show cause why his federal habeas petition should not be denied as further set out. Signed by Honorable Judge Terry F. Moorer on 8/17/2012. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RUSSELL DONALD MAYO,
#248428,
Petitioner,
v.
GARY HETZEL, et al.,
Respondents.

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Civil Action No. 1:12cv587-TMH
(WO)

ORDER
The respondents have filed an answer (Doc. No. 11) in which they argue that the pro
se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by state inmate Russell
Donald Mayo (“Mayo”) 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 The respondents contend that because the

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Subsection (d) was added by the Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”). This Act became effective on April 24, 1996. The limitation period codified at 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;
(continued...)

conviction Mayo challenges became final in May 2009 – after the effective date of the statute
of limitations – Mayo must have filed his habeas petition within one year of the conviction’s
becoming final, exclusive of the time that any properly filed state post-conviction petition
related to the conviction was pending in the state courts. The respondents acknowledge that,
after he was convicted, Mayo filed a post-conviction petition pursuant to Rule 32 of the
Alabama Rules of Criminal Procedure. However, the respondents maintain that the federal
limitation period expired before Mayo filed the Rule 32 petition and that, consequently, his
filing of that petition had no effect on the running of the limitation period. See Tinker v.
Moore, 255 F.3d 1331, 1333 (11th Cir. 2001).
Title 28 U.S.C. § 2244(d)(1)(A) provides 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 expired. Exhibits submitted by the respondents reflect that a jury
convicted Mayo on January 16, 2008, of first-degree receipt of stolen property (Resp. Exh.

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(...continued)
(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.
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A at 63) and that Mayo was sentenced, as a habitual felony offender, to 50 years in prison
on June 13, 2008 (id. at 81). Mayo appealed, and the Alabama Court of Criminal Appeals
affirmed his conviction on April 24, 2009. Resp. Exh. D. Mayo did not file an application
for rehearing or a petition for certiorari review with the Alabama Supreme Court. On May
13, 2009, the Court of Criminal Appeals issued its certificate of judgment. Resp. Exh. E.
Because Mayo did not seek a rehearing or a certiorari petition in the state supreme court, he
is not entitled to the additional 90 days for seeking certiorari review in the United States
Supreme Court, and his conviction became final, for federal habeas purposes, on May 13,
2009. See Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006). The one-year period for
filing his federal petition commenced on that date. Mayo filed his petition on July 2, 2012
– more than three years after his conviction became final.
Although Mayo filed a Rule 32 petition in the state trial court on or around July 19,
2011 (see Resp. Exh. F at 25),2 that filing did not toll the federal limitation period, which had
already expired before Mayo filed the Rule 32 petition. Tinker, 255 F.3d at 1333. More
specifically, the federal limitation period expired on May 13, 2010 (one year after Mayo’s
conviction became final).
Because it appears that the one-year limitation period contained in 28 U.S.C. §
2244(d)(1) expired well before Mayo filed the instant petition, it is

2

The trial court denied Mayo’s Rule 32 petition, and the Alabama Court of Criminal Appeals
later affirmed the trial court’s judgment. The state court proceedings on Mayo’s Rule 32 petition
concluded on June 27, 2012, when the Court of Criminal Appeals’ issued a certificate of judgment.
See Resp. Exhs. J-M.
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ORDERED that on or before September 7, 2012, Mayo 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 by the
respondents in their answer.
Done this 17th day of August, 2012.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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