Mayo v. Hetzel et al (Inmate 3)

Filing 20

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,
Petitioner,
v.
GARY HETZEL, et al.,
Respondents.

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CIVIL ACTION NO.
1:12cv587-TMH
(WO)

OPINION
Pursuant to 28 U.S.C. § 2254, petitioner Russell
Donald Mayo filed this habeas-corpus case.

This lawsuit

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.

After an

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

direct appeal.

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.
neither

referenced

nor

presented

any

“new

Mayo

reliable

evidence,” Schlup v. Delo, 513 U.S. 298, 324 (1995), to
establish his innocence as a matter of fact.

Indeed, the

only evidence he pointed to was testimony presented at
trial, which the jury chose to discount.

2

In

his

objections,

Mayo

argues--for

the

first

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
was

allowed

limitations
petition,

an

period
he

objections.

opportunity
should

never

to

not

asserted

show
apply

this

cause
to

matter

why

his

§

until

the
2254
his

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
Rule

32

petition

was

filed

well

after

the

federal

limitations period had expired).
Further, Mayo does not establish that he exercised due
diligence to determine the status of his direct appeal.

3

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
appeal

was

final.

Mayo’s

failure

to

set

forth

any

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.
Court

of

Criminal

Appeals

issued

its

The Alabama

certificate

judgment on direct review on May 13, 2009.

of

Mayo filed a

state Rule 32 petition more than two years after that
date.

This

does

not

indicate

that

Mayo

exercised

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