Strickland v. Hooks et al (INMATE3)

Filing 16

REPORT AND RECOMMENDATION that the 1 Petition for Writ of Habeas Corpus relief pursuant to 28 U.S.C. § 2254 filed by Tommy Strickland be denied as time-barred and that this case be dismissed with prejudice. Objections to R&R due by 11/16/2009. Signed by Honorable Susan Russ Walker on 11/3/2009. (dmn)

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 T O M M Y STRICKLAND, # 124708, P e titio n e r, v RALPH HOOKS, WARDEN, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) )

Civil Action No.2:07cv1052-MHT (WO)

RECOMMENDATION OF THE MAGISTRATE JUDGE I. BACKGROUND

T o m m y Strickland ("Stickland"), an Alabama inmate, is before the court on a petition f o r writ of habeas corpus under 28 U.S.C. § 2254 filed on November 19, 2007.1 Strickland c h a lle n g e s a conviction for promoting prison contraband entered against him in 1986 by the C irc u it Court of Elmore County, Alabama. That court sentenced Strickland on March 4, 1 9 8 6 , to a term of 15 years' imprisonment, split so that 10 years would be served c o n c u rre n tly with an existing sentence and 5 years would be served consecutively to another s e n te n c e being served by Strickland. In March 2003 (approximately 15 years after he was s e n te n c e d ), Strickland filed a notice of appeal challenging the 1986 conviction; however, the

Although the petition was date-stamped "received" in this court on November 30, 2007, it was signed by Strickland on November 19, 2007. 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); Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Strickland] signed it...." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).

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appeal was dismissed as untimely by the Alabama Court of Criminal Appeals. Because his a p p e a l was not timely, Strickland's conviction became final by operation of law on April 15, 1 9 8 6 , 42 days after he was sentenced. See Ala.R.App.P. 4(b)(1); Bridges v. Johnson, 284 F .3 d 1201, 1202 (11th Cir. 2002). In his federal habeas petition, Strickland argues that his s ta te sentence is unlawful because the trial court had no authority to order that he serve 10 ye a rs of his sentence concurrently with an existing sentence and that he serve 5 years of his s e n te n c e consecutively to another existing sentence. (Doc. No. 1 at pp. 3-7.) The respondents argue that Strickland's petition is time-barred by the one-year lim ita tio n period applicable to 28 U.S.C. § 2254 petitions, see 28 U.S.C. § 2244(d)(1), b e c a u s e Strickland failed to file the petition within the one-year "grace period" allowed in th is circuit.2 (Doc. No. 13 at pp. 5-8.) The respondents specifically assert that because S tric k la n d 's conviction was final in 1986 ­ well before the effective date of the AEDPA ­ h e had until April 24, 1997, to file a timely § 2254 petition, as he filed no state p o s t-c o n v ic tio n petition challenging his conviction during the running of the limitation p e rio d . See Wilcox v. Florida Department of Corrections, 158 F.3d 1209, 1211 (11 th Cir. 1 9 9 8 ); Goodman v. United States, 151 F.3d 1335, 1337 (11 th Cir. 1998). The respondents a c k n o w le d g e that Strickland filed a state post-conviction petition pursuant to Ala.R.Crim.P. 3 2 in January 2007. However, the respondents maintain that this action has no impact on the ru n n in g of the limitation period contained in 28 U.S.C. § 2244(d)(1), as the Rule 32 petition

Subsection (d) of 28 U.S.C. § 2244 was added by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). This Act became effective on April 24, 1996. 2

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was filed and adjudicated by the state courts well after the federal limitation period had e x p ire d . See Tinker v. Moore, 255 F.3d 1331, 1333-1335 n.4 (11 th Cir. 2001); Webster v. M o o r e , 199 F.3d 1256, 1259 (11 th Cir. 2000). B a se d on the respondents' argument, this court entered an order advising Strickland th a t he had failed to file the present federal habeas petition within the one-year limitation p e rio d established by 28 U.S.C. § 2241(d)(1). (Doc. No. 14.) The order also gave Strickland a n opportunity to show cause why his petition should not be barred from review by this court. (Id.) Strickland took the opportunity granted to file a response. (Doc. No. 15.) U p o n review of the pleadings filed by the parties and the applicable federal law, the c o u rt concludes that Strickland's habeas petition should be denied and this case dismissed w ith prejudice because the petition was not filed within the time allowed by applicable f e d e ra l law. 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. The limitation period shall run from the latest of ­ (A ) the date on which the judgment became final by the 3 DISCUSSION

conclusion 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 f o r seeking direct review, whichever is later. The Circuit Court of Elmore County imposed th e sentence for the state conviction challenged by Strickland on March 4, 1986. Strickland f ile d an untimely notice of appeal, which was dismissed by the Alabama Court of Criminal A p p e a ls . Because he failed to undertake the direct appeal process properly, he was not e n title d to petition the United States Supreme Court for review of his conviction. By o p e ra tio n of law, then, his conviction became final on April 15, 1986 ­ 42 days after im p o s itio n of sentence ­ as that was the date on which his time to seek direct review expired.

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Ala.R.App.P. 4(b)(1); Bridges, supra, 284 F.3d at 1202. See also Rule 13.1, Rules of the U n ite d States Supreme Court. S tric k la n d 's conviction became final before enactment of the AEDPA. Thus, if the A E D P A were applied retroactively, the one-year limitation period contained in § 2244(d)(1)(A) would have expired in 1987. However, the Eleventh Circuit has held that " a p p lic a t i o n of the one-year time bar in 28 U.S.C. § 2244(d) to petitions of prisoners, like [ S tric k la n d ], whose convictions became final long prior to the effective date of the AEDPA ... `would be unfair, and impermissibly retroactive.' [Goodman, 151 F.3d at 1337]." Wilcox, 1 5 8 F.3d at 1211. The Court has further held that prisoners in this position must be allowed a reasonable period of time after enactment of § 2244(d)'s one-year period of limitation to f ile their § 2254 petitions, and determined that "a reasonable time" is "one year from the A E D P A 's effective date." Id. T itle 28 U.S.C. § 2244(d)(2) provides that "[t]he time during which a properly filed a p p lic a tio n for State post-conviction 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 limitation under this s e c tio n ." Although Strickland filed a Rule 32 petition in the state court in January 2007, the p e titio n did not toll the federal limitation period applicable to the instant action, as the state p e titio n was filed well after the one-year federal limitation period has expired. This court c o n c l u d e s, therefore, that the time allowed Strickland for filing a federal habeas petition e x p ire d on April 24, 1997.

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Strickland did not file his federal habeas petition until November 19, 2007 ­ over 10 ye a rs after expiration of the reasonable time period afforded to him under applicable law. B. O th e r Statutory Exceptions to Limitation Period Any efforts by Strickland to find safe harbor in the statutory tolling provisions of 28 U .S .C . § 2244(d)(1) (B)-(D) would be unavailing in this case.3 There is no evidence that any u n c o n stitu tio n a l or illegal State action impeded Strickland from filing a timely § 2254 p e titio n . See § 2244(d)(1)(B). Strickland's claims also do not rest on an alleged "right [that] h a s been newly recognized by the Supreme Court and made retroactively applicable to cases o n collateral review." See § 2244(d)(1)(C). Finally, Strickland does not submit any grounds f o r relief that arguably could not have been put forth earlier under the exercise of due d ilig e n c e . See § 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 i n 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." Sandvik v. United States, 177 F.3d 1269, 1271 (1999); see also Wade v. Battle, 379 F.3d 1 2 5 4 , 1264-65 (11th Cir. 2004); Drew v. Department of Corrections, 297 F.3d 1278, 1286 (1 1th 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

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Strickland does not assert that these tolling provisions should be applied to his petition. 6

extraordinary circumstances and due diligence. See Akins v. United States, 204 F.3d 1086, 1 0 8 9 -9 0 (11 th Cir. 2000). A s noted above, this court entered an order allowing Strickland an opportunity to s h o w cause why his petition should not be time-barred from review by this court. (Doc. No. 1 4 .) While Strickland did file a response to the court's order (Doc. No. 15), his response c o n ta in s no argument asserting any credible basis either for equitable or statutory tolling of th e limitation period in this case. Because Strickland has shown no basis for tolling, statutory o r equitable, his federal habeas petition is time-barred, and it is unnecessary to address the m e rits of the claims he raises in the 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 s e 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 November 16, 2009. A party must specifically identify the findings in the

R e c o m m e n d a ti o 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 a l factual findings accepted or adopted by the District Court except upon grounds of

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plain 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 (11th Cir. 1982). See also Bonner v. City of P ric h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc). D o n e , this 3 rd day of November, 2009.

/s / Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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