Austin v. State of Alabama et al (INMATE 3)

Filing 7

RECOMMENDATION of the Magistrate Judge that the 1 Petition for Writ of Habeas Corpus be denied as time-barred and that this case be dismissed with prejudice. Objections to R&R due by 4/28/2009. Signed by Honorable Wallace Capel, Jr on 4/16/09. (sl, )

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 M A R C E L AUSTIN, #236470, P e titio n e r, v S T A T E OF ALABAMA, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) )

Civil Action No.2:07cv491-WKW (WO)

RECOMMENDATION OF THE MAGISTRATE JUDGE I. BACKGROUND

M a rc e l Austin ("Austin"), an Alabama inmate, is before the court on a petition for h a b e as corpus relief under 28 U.S.C. § 2254, filed through counsel on June 5, 2007. (Doc. N o . 1.) Austin challenges a conviction for reckless murder entered against him in 2004 by the Circuit Court of Montgomery County, Alabama. 1 The respondents argue that Austin's 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 (Doc. No. 4.) T h e respondents acknowledge that Austin filed a state post-conviction petition p u rs u a n t to Rule 32, Alabama Rules of Criminal Procedure, in July of 2005.3 (Doc. No. 4.) On August 6, 2004, the trial court sentenced Austin to 45 years in prison. Austin filed a notice of appeal, but the appeal was dismissed as untimely by the Alabama Court of Criminal Appeals on November 10, 2004. Subsection (d) was added by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). This Act became effective on April 24, 1996.
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Although the Rule 32 petition was date-stamped as "filed" in the Circuit Court of (continued...)

H o w e v e r, the respondents contend that even allowing a tolling of the limitation period c o n tain e d in 28 U.S.C. § 2244(d)(1) during the pendency of the Rule 32 petition in the state c o u r ts , the limitation period expired before Austin filed his federal habeas petition. See W e b ste r v. Moore, 199 F.3d 1256, 1259 (11 th Cir. 2000); also Tinker v. Moore, 255 F.3d 1 3 3 1 , 1333 1335 n.4 (11 th Cir. 2001). B a se d on the respondents' argument, the court entered an order advising Austin that h e had failed to file the present federal habeas petition within the one-year limitation period e sta b lis h e d by 28 U.S.C. § 2241(d)(1). (Doc. No. 5.) The order also gave Austin an o p p o rtu n ity to show cause why his petition should not be barred from review by this court. (Id.) Austin took the opportunity granted to file a response. (Doc. No. 6.) U p o n review of the pleadings filed by the parties and the applicable federal law, the c o u rt concludes that Austin's habeas petition should be denied and this case dismissed with

(...continued) Montgomery County, Alabama, on August 1, 2005, Austin signed the petition on July 8, 2005, and the in forma pauperis application submitted with the petition was executed by the prison account clerk on July 8, 2005. Under the mailbox rule, a pro se inmate's petition is deemed filed in federal cases the date it is delivered to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 27172 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Alabama courts have [adopted the mailbox rule and] held that a pro se incarcerated petitioner/appellant is considered to have `filed' a Rule 32 petition, a notice of appeal, or a petition for a writ of certiorari when those documents are given to prison officials for mailing." Ex parte Allen, 825 So.2d 271, 272 (Ala. 2002); Holland v. State, 621 So.2d 373, 375 (Ala.Crim.App. 1993). Consequently, the prison mailbox rule applies to a pro se Rule 32 petition filed in the state courts of Alabama. "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [Austin's Rule 32 petition] was delivered to prison authorities the day [Austin] signed the petition. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In light of the foregoing, this court construes July 8, 2005, as the date Austin filed his state Rule 32 petition. 2

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p re ju d ic e because the petition was not filed within the time allowed by applicable federal la w . II. A. L im ita tio n Period 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: (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 t it u t io 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 j u d g m e n t or claim is pending shall not be counted toward any period of 3 DISCUSSION

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 f o r seeking direct review, whichever is later. The Circuit Court of Montgomery County e n te r e d the challenged conviction against Austin on June 21, 2004. That court imposed se n ten c e upon Austin on August 6, 2004. As indicated above, Austin filed a notice of appeal, b u t his appeal was dismissed as untimely by the Alabama Court of Criminal Appeals on N o v e m b e r 10, 2004. That court entered a certificate of judgment on the same day. Austin d id not seek further appellate review. Because he did not seek relief from the Alabama S u p r e m e Court, Austin was not entitled to file a petition for certiorari with the United States S u p r e m e Court. Thus, the time for seeking direct review of the challenged conviction e x p ire d upon expiration of the time for filing a petition for writ of certiorari with the A la b a m a Supreme Court ­ i.e., 90 days after the Alabama Court of Criminal Appeals' N o v e m b e r 10, 2004, entry of the certificate of judgment. See Coates v. Byrd, 211 F.3d 1225 (1 1 th Cir. 2000); see also Rule 13.1, Rules of the United States Supreme Court (a petition for w rit of certiorari may only be filed to review a judgment or order entered by a state court of last resort and must be filed within 90 days of the action undertaken by such state court). A c c o rd in g ly, Austin's conviction became final on February 8, 2005, and the one-year lim ita tio n period contained in § 2244(d)(1)(A) began to run on that date. Twenty-eight U.S.C. § 2244(d)(2) provides that "[t]he time during which a properly

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f ile d application for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending shall not be counted toward any period of limitation u n d er this section." Austin filed a Rule 32 petition in the Circuit Court of Montgomery C o u n ty on July 8, 2005. This court finds that the limitation period ran for 150 days after A u stin 's conviction became final until his filing of the Rule 32 petition in the state trial court. T h e trial court dismissed the Rule 32 petition on January 3, 2006. Austin appealed the ruling, an d on May 12, 2006, the Alabama Court of Criminal Appeals affirmed the trial court's d is m is s a l of the Rule 32 petition. The appellate court entered a certificate of judgment on J u n e 7, 2006, rendering final resolution of this action in the state courts. At such time, A u s tin had 215 days remaining within which to file a timely federal habeas petition. The c o u rt therefore concludes that the time allowed Austin for the filing of a timely federal h a b e as petition expired on or about January 8, 2007. However, Austin did not file his federal h a b e as petition until June 5, 2007, approximately five months after expiration of the one-year lim ita tio n period. B. O th e r Statutory Exceptions to Limitation Period Any efforts by Austin to seek harbor in the statutory tolling provisions of 28 U.S.C. § 2244(d)(1) (B)-(D) would be unavailing in this case.4 There is no evidence that any u n c o n stitu tio n a l or illegal State action impeded Austin from filing a timely § 2254 petition. S e e § 2244(d)(1)(B). Austin's claims also do not rest on an alleged "right [that] has been

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Austin does not assert that these tolling provisions should be applied to his petition. 5

n e w ly recognized by the Supreme Court and made retroactively applicable to cases on c o lla te ra l review." See § 2244(d)(1)(C). Finally, Austin does not submit any grounds for re lie f that arguably could not have been put forth earlier under the exercise of due diligence. S e e § 2244(d)(1)(D). C. E q u ita b le Tolling of Limitation Period T h e limitation period may be equitably tolled on grounds apart from those specified in 28 U.S.C. § 2244(d) "when a movant untimely files because of extraordinary c irc u m s ta n c e s that are both beyond his control and unavoidable even with diligence." S a n d v ik v. United States, 177 F.3d 1269, 1271 (1999); see also Wade v. Battle, 379 F.3d 1 2 5 4 , 1264-65 (11 th Cir. 2004); Drew v. Department of Corrections, 297 F.3d 1278, 1286 (11 th Cir. 2002); Helton v. Sec'y for Dep't of Corr., 259 F.3d 1310, 1312 (11 th Cir. 2001). An in m a te bears the difficult burden of showing specific facts to support his claim of e x tra o rd in a ry circumstances and due diligence. See Akins v. United States, 204 F.3d 1086, 1 0 8 9 -90 (11 th Cir. 2000). A u s tin suggests as grounds for equitable tolling in his case that he is ignorant of the law and had no representation for his post-conviction remedies until his family hired his p rese n t counsel in 2007. (Doc. No. 6 at 1-2.) However, a petitioner' pro se status, ignorance o f the law, and lack of legal assistance are insufficient grounds on which to toll the limitation p e rio d . See Felder v. Johnson, 204 F.3d 168, 171-73 (5 th Cir. 2000) (ignorance of the law is insufficient rationale for equitable tolling); Turner v. Johnson, 177 F.3d 390, 392 (5 th Cir. 1 9 9 9 ) (neither "a plaintiff's unfamiliarity with the legal process nor his lack of representation 6

d u rin g the applicable filing period merits equitable tolling"); Fisher v. Johnson, 174 F.3d 7 1 0 , 714 (5 th Cir. 1999) ("ignorance of the law, even for an incarcerated pro se petitioner, g e n e ra lly does not excuse prompt filing"); Marsh v. Soares, 223 F.3d 1217, 1220 (10 th Cir. 2 0 0 0 ) (same). B ase d on the foregoing analysis, the court concludes that Austin has failed to assert a n y credible basis for either equitable or statutory tolling of the limitation period until he f ile d this cause of action. The reasons set forth by Austin for his untimeliness are insufficient to establish the extraordinary circumstances required to toll the limitation period. See S a n d v ik , 177 F.3d at 1271. B e c au s e Austin is not entitled to tolling, statutory or equitable, his federal habeas p e titio n is time-barred, and it is unnecessary to address the merits of the claims he raises in th e petition. 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 pursuant to 28 U.S.C. § 2254 be denied as time-barred and that this c a se be dismissed with prejudice. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e f o re April 28, 2009. 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

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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 t ein 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 16 th day of April, 2009.

/s / Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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