Mayo v. Hetzel et al (Inmate 3)
OPINION. Signed by Honorable Judge Myron H. Thompson on 3/31/2014. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
RUSSELL DONALD MAYO,
GARY HETZEL, et al.,
CIVIL ACTION NO.
Pursuant to 28 U.S.C. § 2254, petitioner Russell
Donald Mayo filed this habeas-corpus case.
is now before the court on the recommendation of the
United States Magistrate Judge that the habeas-corpus
request be denied as time-barred.
Also before the court
are Mayo's objections to the recommendation.
independent and de novo review of the record, the court
concludes that the objections should be overruled and the
magistrate judge’s recommendation adopted.
By operation of law, Mayo’s conviction became final on
May 13, 2009, upon the issuance by the Alabama Court of
Criminal Appeals of the certificate of judgment in his
The one-year limitation period contained
in 28 U.S.C. § 2244(d) began to run on that date and ran
unabated before expiring on May 13, 2010.
Mayo filed his
§ 2254 petition over two years too late, on July 2, 2012.
In his objections, Mayo argues that this court was
wrong to find that he failed to make a showing of actual
innocence necessary to excuse application of the time-bar.
In the recommendation, the magistrate judgment found that,
in asserting his actual innocence, Mayo presented an
argument rooted in the alleged legal insufficiency of the
evidence sustaining his conviction. More specifically, he
maintained only that he did not have knowledge that the
property he was convicted of receiving was stolen.
evidence,” Schlup v. Delo, 513 U.S. 298, 324 (1995), to
establish his innocence as a matter of fact.
only evidence he pointed to was testimony presented at
trial, which the jury chose to discount.
time--that he is entitled to equitable tolling of the
federal limitation period because his appellate counsel
did not notify him of the results of his direct appeal.
First, this argument is foreclosed because, although he
In his response to the court’s show-cause
order, he argued (incorrectly) only that his claims were
not subject to the federal limitations period because they
were “jurisdictional” and that the federal limitations
period ran from the completion of proceedings on his state
Rule 32 petition (which, as this magistrate judgment noted
in the recommendation, had no tolling effect because the
limitations period had expired).
Further, Mayo does not establish that he exercised due
diligence to determine the status of his direct appeal.
Although he maintains that his counsel became debilitated
after his appeal was filed and was no longer in contact
with him and that, therefore, he found out the status of
his appeal only by contacting the state appellate court,
he provides no dates indicating when he learned that his
specific dates renders it impossible to say that he could
not have filed a § 2254 petition within one year of his
learning that his state appeal was final.
judgment on direct review on May 13, 2009.
Mayo filed a
state Rule 32 petition more than two years after that
diligence in keeping abreast of any proceeding relating to
his direct appeal.
And there has not been a showing by
him that extraordinary circumstances prevented him from
filing his § 2254 petition before July 2012.
An appropriate judgment will be entered.
DONE, this the 31st day of March, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?