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)

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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). 1 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 2 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. 4 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. 5 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 3 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 7 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 8

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