Hawthorne v. Thomas et al (INMATE 3)

Filing 11

ORDER directing that on or before December 28, 2012, Hawthorne 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). Signed by Honorable Judge Terry F. Moorer on 12/03/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHRISTOPHER HAWTHORNE,
# 247177,

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Petitioner,
v.
KIM TOBIAS THOMAS, et al.,
Respondents.

Civil Action No. 1:12cv901-TMH
(WO)

ORDER
The respondents have filed an answer (Doc. No. 10) in which they argue that the pro
se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate
Christopher Hawthorne (“Hawthorne”) on October 15, 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).
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 reflect that on February 27, 2006, a Dale
County jury found Hawthorne guilty of murder in violation of § 13A-6-2(a)(1), Ala. Code
1975. Exh. A. On May 27, 2006, the trial court sentenced Hawthorne to 35 years in prison.
Id. On February 23, 2007, on direct appeal, Hawthorne’s conviction was affirmed by the
Alabama Court of Criminal Appeals. Id. Hawthorne did not seek certiorari review in the
Alabama Supreme Court, and the Court of Criminal Appeals issued a certificate of judgment
on March 14, 2007. Exh. A-1. Because Hawthorne did not seek certiorari review in the
Alabama Supreme Court, his conviction became final (and the one-year limitation period in
§ 2244(d)(1)(A) began to run) when the Court of Criminal Appeals issued the certificate of
judgment, i.e., on March 14, 2007. See Pugh v. Smith, 465 F.3d 1295, 1299-300 (11th Cir.
2006).
Almost nine months later, on December 3, 2007, Hawthorne filed a Rule 32 petition
in the trial court challenging his murder conviction and sentence, thereby tolling the
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limitation period for filing a § 2254 petition. Exh. B. See 28 U.S.C. § 2244(d)(2). At that
time, the one-year limitation period for filing a § 2254 petition had run for 264 days. The
trial court denied Hawthorne’s Rule 32 petition on April 9, 2008. Hawthorne appealed that
decision, and on October 24, 2008, 2007, the Alabama Court of Criminal Appeals affirmed
the trial court’s judgment. Exh. B-1. On November 12, 2008, the Court of Criminal Appeals
issued a certificate of judgment in the case. Exh. B-2.
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.” See Tinker v. Moore, 255 F.3d 1331, 1335. n.4 (11th Cir. 2001). As reflected in
the dates recounted above, Hawthorne’s Rule 32 petition was pending in the state courts
from December 3, 2007, through November 12, 2008. On November 12, 2008, he had 101
(365 - 264) days remaining within which to file a timely federal habeas petition. The
limitation period began to run again for him on November 13, 2008, and ran unabated before
expiring 102 days later, on February 23, 2008.1 As noted, Hawthorne did not file his federal
petition until October 15, 2012 – well over three years after the limitation period expired.
Because it therefore appears that the one-year limitation period contained in 28 U.S.C.
§ 2244(d)(1) expired well before Hawthorne filed the instant petition, it is
ORDERED that on or before December 28, 2012, Hawthorne shall show cause why
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The court added an additional day for the running of the limitation period, because February
22, 2008, was a Sunday.
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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).
Done this 3rd day of December, 2012.

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

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