Carter v. Price et al (INMATE 3)

Filing 21

ORDER re 20 Answer and directing Carter TO SHOW CAUSE as to why his federal habeas 1 Petition should be not be denied as it was not filed within the one-year limitation period established by 28 U.S.C. § 2244(d)(1). Show Cause Response due by 12/28/2011. Signed by Honorable Judge Charles S. Coody on 12/7/2011. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALBERT CARTER, JR., # 107266,
Petitioner,
v.
CHERYL PRICE, et al.,
Respondents.

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Civil Action No. 2:11cv932-TMH
(WO)

ORDER
The respondents have filed an answer (Doc. No. 20) 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
Albert Carter, Jr. (“Carter”), on April 22, 2011, 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). The respondents contend that because the state conviction Carter challenges became
final in 2005 – after the April 1996 enactment of the statute of limitations – Carter must have
filed any federal habeas petition within one year of the conviction’s becoming final,
exclusive of the time any properly filed state post-conviction petition related to the
conviction was pending in the state courts. The respondents acknowledge that Carter
challenged his conviction by a post-conviction petition filed in the trial court pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure. However, the respondents maintain
that, even allowing a tolling of the limitation period during the pendency of state-court
proceedings on Carter’s Rule 32 petition, the one-year federal limitation period expired well

before Carter filed the instant federal habeas petition. See Webster v. Moore, 199 F.3d 1256,
1259 (11th Cir. 2000); Tinker v. Moore, 255 F.3d 1331, 1333 1335. n.4 (11th Cir. 2001). The
respondents therefore maintain that Carter’s petition is time-barred under 28 U.S.C. §
2244(d)(1)(A).
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 indicate that Carter was convicted of attempted
murder in the Pike County Circuit Court on November 16, 2004. On that same date, the trial
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court sentenced Carter, as a habitual felony offender, to 99 years in prison. On September
23, 2005, on direct appeal, Carter’s conviction was affirmed by the Alabama Court of
Criminal Appeals. (Exhibit A.) Carter did not file an application for rehearing or seek
certiorari review in the Alabama Supreme Court. The Alabama Court of Criminal Appeals
issued a certificate of judgment in his case on October 12, 2005. (Exhibit B.)
Approximately five months later, on March 6, 2006, Carter filed a Rule 32 petition
in the trial court challenging his attempted-murder conviction, thereby tolling the limitation
period for filing a § 2254 petition. At that time, the one-year limitation period for filing a
§ 2254 petition had run for 164 days. The trial court denied Carter’s Rule 32 petition on
December 13, 2006. Carter appealed, and on April 27, 2007, the Alabama Court of Criminal
Appeals affirmed the trial court’s judgment. (Exhibit C.) After unsuccessfully applying for
rehearing with the Alabama Court of Criminal Appeals, Carter petitioned the Alabama
Supreme Court for certiorari review, which that court denied on July 13, 2007. (Exhibit D.)
That same day, a certificate of judgment was issued in the case. (Exhibit E.)
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.” Carter’s Rule 32 petition was pending in the state courts March 6, 2006, until July
13, 2007. On July 13, 2007, Carter had 201 (365 - 164) days remaining within which to file
a timely federal habeas petition. The limitation period began to run again for Carter on July

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13, 2007, and ran unabated before expiring 201 days later, on January 30, 2008.
As noted above, Carter did not file his federal petition until April 22, 2011 – more
than three years after the limitation period had expired. Because it therefore appears that the
one-year limitation period contained in 28 U.S.C. § 2244(d)(1) expired well before Carter
filed the instant petition, it is
ORDERED that on or before December 28, 2011, Carter 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).
Done this 7th day of December, 2011.

/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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