Greenwood v. Mosley et al (INMATE 3)

Filing 13

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the petition for habeas corpus relief be dismissed with prejudice as untimely filed. Objections to R&R due by 12/22/2008. Signed by Honorable Terry F. Moorer on 12/9/2008. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION DEMOND GREENWOOD, #179188, P e titio n e r, v. GWENDOLYN C. MOSLEY, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No.2:07cv407-WKW (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE I. BACKGROUND

D e m o n d Greenwood ("Greenwood"), an Alabama inmate acting pro se, is before the c o u rt on a petition for habeas corpus relief under 28 U.S.C. § 2254.1 Greenwood challenges c o n v ictio n s for first-degree rape and first-degree robbery entered in the Circuit Court of Dale C o u n ty, Alabama, in 1997. That court sentenced Greenwood, as a habitual offender, on May 2 3 , 1997, to 40 years on each count, the terms to run consecutively. Greenwood did not u n d e rta k e a direct appeal; thus, his convictions became final by operation of law on July 7, 1 9 9 7 . In his habeas petition, Greenwood argues that he received ineffective assistance of

Greenwood originally filed his petition (Doc. No. 1) in the United States District Court for the Southern District of Alabama. Because the Middle District of Alabama is where his convictions and sentences arose, the action was transferred to this court. Although Greenwood's petition was date-stamped "filed" in United States District Court for the Southern District of Alabama on February 5, 2007, the petition was signed by Greenwood as delivered to prison authorities for mailing on January 31, 2007. Under the "mailbox rule," a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999). Accordingly, the court deems January 31, 2007, as the date of filing.

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c o u n se l during proceedings in the trial court and when his attorney then failed to file a notice o f appeal on his behalf. T h e respondent filed a response (Doc. No.7) arguing that Greenwood's habeas p e titio n is time-barred by the one-year limitation period applicable to 28 U.S.C. § 2254 p e titio n s . See 28 U.S.C. § 2244(d)(1).2 Specifically, the respondent contends that because th e convictions Greenwood challenges became final in 1997 ­ after the effective date of the s ta tu t e of limitations ­ Greenwood must have filed his habeas petition within a year of these c o n v ic tio n s becoming final, exclusive of the time any properly filed state post-conviction p e titio n related to the convictions was pending in the state courts. The respondent

a c k n o w le d g e s that Greenwood filed a state post-conviction petition pursuant to Rule 32, A la b a m a Rules of Criminal Procedure, in July of 2002. However, the respondent maintains th a t the filing of the Rule 32 petition did not toll the federal limitation period because the s ta te petition was filed well after the federal limitation period had expired. See Moore v. C r o s b y , 321 F.3d 1377, 1381 (11 th Cir. 2003); Tinker v. Moore, 255 F.3d 1331, 1333-1335 n .4 (11 th Cir. 2001); Webster v. Moore, 199 F.3d 1256, 1259 (11 th Cir. 2000). A f te r due consideration and upon review of the pleadings in this case and the law of th is Circuit, this court concludes that an evidentiary hearing is not required and that G re e n w o o d 's habeas petition should be denied and this case dismissed with prejudice b e c a u s e the petition was not filed within the time allowed by applicable federal law.

Subsection (d) was added by the Anti-Terrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). This Act became effective on April 24, 1996. 2

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II.

DISCUSSION

T h e Antiterrorism and Effective Death Penalty Act of 1996 was signed into law on A p ril 24, 1996, and amended the habeas corpus statute to include a one-year limitation period o n petitions filed pursuant to 28 U.S.C. § 2254. This limitation period is codified at 28 U .S .C . § 2244(d) and provides that: (1 ) A 1-year period of limitation shall apply to an application for a writ of h a b e a s corpus by a person in custody pursuant to the judgment of a State court. T h e limitation period shall run from the latest of ­ (A ) the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for s e e k in g such review; (B ) the date on which the impediment to filing an a p p lic a tio n created by State action in violation of the C o n s titu tio n or laws of the United States is removed, if the a p p lic a n t was prevented from filing by such State action; (C ) the date on which the constitutional right asserted w a s initially recognized by the Supreme Court, if the right has b e e n newly recognized by the Supreme Court and made re tro a c tiv e ly applicable to cases on collateral review; or (D ) the date on which the factual predicate of the claim o r claims presented could have been discovered through the e x e rc is e of due diligence. (2 ) The time during which a properly filed application for State p o s t-c o n v ic tio n or other collateral review with respect to the pertinent ju d g m e n t or claim is pending shall not be counted toward any period of lim ita tio n under this subsection. T h e statute directs that the limitation period for filing a habeas petition under 28 U .S .C . § 2254 begins to run at the conclusion of direct review or upon expiration of the time

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f o r seeking direct review, whichever is later. The Circuit Court of Dale County entered the c h a l le n g e d convictions against Greenwood on February 24, 1997. That court imposed s e n te n c e upon Greenwood on May 23, 1997. Greenwood did not file a direct appeal. By o p e ra tio n of law, then, his convictions became final on July 7, 1997 ­ the first business day f o rty-tw o days after imposition of sentence, excluding state holidays ­ as this is the date on w h ic h Greenwood's time to seek direct review expired. See Rule 4(b)(1), Alabama Rules of A p p e lla t e Procedure. T h e record reflects that Greenwood filed a state post-conviction petition under Rule 3 2 , Alabama Rules of Criminal Procedure, in July 2002. However, the respondent correctly a ss e rts that the filing of the state petition did not toll the one-year federal limitation period re le v a n t to the instant federal habeas petition, because the state petition was filed a p p ro x im a te ly four years after the federal limitation period had expired. Moore v. Crosby, 3 2 1 F.3d 1377, 1381 (11 th Cir. 2003) ("The plain language of the statute provides for tolling `[ t]h e time during which a properly filed application for State post-conviction or other c o lla te ra l review ... is pending.' 28 U.S.C. § 2244(d)(2). While a `properly filed' application f o r post-conviction relief tolls the statute of limitations, it does not reset or restart the statute o f limitations once the limitations period has expired. In other words, the tolling provision d o es not operate to revive the one-year limitations period if such period has expired."); T in k e r v. Moore, 255 F.3d 1331, 1335 n.4 (11 th Cir. 2001) ("[A] properly filed petition in sta te court only tolls the time remaining within the federal limitation period."); Webster v.

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M o o r e , 199 F.3d 1256, 1259 (11 th Cir. 2000) ("[E]ven `properly filed' state-court petitions m u s t be `pending' [during the one-year period of limitation] in order to toll the limitations p e rio d . A state court petition ... that is filed following the expiration of the limitations period ca n n o t toll that period because there is no period remaining to be tolled."). In light of the foregoing, the court concludes that the tolling provision in § 2244(d)(2) is unavailing in this case and that the time allowed Greenwood for the filing of a federal h a b e as petition expired on July 8, 1998. Greenwood filed this federal habeas petition on J a n u a ry 31, 2007. Under the circumstances, the one-year limitation period in 28 U.S.C. § 2 2 4 4 (d )(1 ) expired long before Greenwood filed his habeas petition. C a se law provides that the limitation period "may be equitably tolled" on grounds a p a rt from those specified in the habeas statute "when a movant untimely files because of e x tra o rd in a ry circumstances that are both beyond his control and unavoidable with d ilig e n c e ." Sandvik v. United States, 177 F.3d 1269, 1271 (11 th Cir. 1999); see also Steed v . Head, 219 F.3d 1298, 1300 (11 th Cir. 2000); Knight v. Schofield, 292 F.3d 709, 711 (11 th C ir. 2002). Such tolling applies only in truly extraordinary circumstances. Jones v. United S t a te s , 304 F.3d 1035, 1039-40 (11 th Cir. 2002); Drew v. Department of Corrections, 297 F .3 d 1278, 1286 (11 th Cir. 2002). "The burden of establishing entitlement to this

e x tra o rd in a ry remedy plainly rests with the petitioner." Drew, 297 F.3d at 1286; see also H e lto n v. Secretary for the Dept. of Corrections, 259 F.3d 1310, 1314 (11 th Cir. 2001). T h is court provided Greenwood an opportunity to show cause why his habeas petition

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s h o u ld not be barred from review as untimely filed. (Doc. No. 11.) Greenwood submitted a response to this court's order in which he alleges entitlement to equitable tolling because, h e says, he did not understand the effect the filing of a state post-conviction petition would h a v e on the running of the federal limitation period for a habeas action under 28 U.S.C. § 2254. (Doc. No. 12.) However, to the extent Greenwood alleges his ignorance of relevant la w as a basis for equitable tolling, he is entitled to no relief, because an inmate's lack of le g a l knowledge, his failure to understand legal principles, and his inability to recognize p o te n tia l claims for relief at an earlier juncture do not constitute extraordinary circumstances su ff icien t to warrant equitable tolling. United States v. Sosa, 364 F.3d 507, 512 (4 th Cir. 2 0 0 4 ) (pro se status and ignorance of the law do not justify equitable tolling); Kreutzer v. B o w e rs o x , 231 F.3d 460, 463 (8 th Cir. 2000) (lack of legal knowledge or legal resources, e v e n in a case involving a pro se inmate, does not warrant equitable tolling); Marsh v. S o a r e s , 223 F.3d 1217, 1220 (10 th Cir. 2000) (a petitioner's pro se status and ignorance of th e law are insufficient to support equitable tolling of the statute of limitations); Felder v. J o h n s o n , 204 F.3d 168, 171 (5th Cir. 1999) (ignorance of the law and pro se status do not c o n stitu te "rare and exceptional" circumstances justifying equitable tolling); Smith v. M c G in n is, 208 F.3d 13, 17 (2 n d Cir. 2000) (petitioner's pro se status throughout most of the lim itatio n period does not merit equitable tolling); Turner v. Johnson, 177 F.3d 390, 392 (5 th C ir. 1999) (unfamiliarity with the legal process during the applicable filing period did not m erit equitable tolling).

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I n light of the foregoing, this court concludes that Greenwood has failed to establish e x tra o rd in a ry circumstance sufficient to justify equitable tolling. The court further concludes t h a t Greenwood fails to show cause why his petition should not be dismissed as untimely f ile d . III. CONCLUSION

A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the petition f o r habeas corpus relief be dismissed with prejudice as untimely filed. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e fo r e December 22, 2008. A party must specifically identify the findings in the

R e c o m m e n d a tio n to which objection is made; frivolous, conclusive, or general objections w ill not be considered. Failure to file written objections to the Magistrate Judge's proposed f in d in g s and recommendations shall bar a party from a de novo determination by the District C o u rt of issues covered in the Recommendation and shall bar the party from attacking on a p p e al factual findings accepted or adopted by the District Court except upon grounds of p la in error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See S te in v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e this 9 th day of December, 2008. /s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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