Holliday v. State of Alabama, et al (INMATE 3)

Filing 21

ORDER directing as follows: (1) Petitioner's objection is OVERRULED; (2) The court ADOPTS the Recommendation of the Magistrate Judge; (3) This petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED with prejudice, and this case is DISMISSED because the petition is time-barred by the one-year limitation period in 28 U.S.C. §2244(d). Signed by Honorable Judge W. Harold Albritton, III on 01/07/2015. (scn, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MARC WAYNE HOLLIDAY, #257141,
Petitioner,
vs.
STATE OF ALABAMA, et al.,
Respondents.

)
)
)
)
)
)
)
)
)

CASE NO. 2:13-cv-129-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #19),
entered on December 9, 2014, and the Petitioner’s objection thereto (Doc. #20), filed on
December 17, 2014.
The Magistrate Judge’s Recommendation found that the federal limitation period for
Holliday to file a § 2254 petition expired on October 5, 2012. Because Holliday did not file a §
2254 petition until February 25, 2013, the Magistrate Judge found the petition to be 144 days late
and, therefore, untimely.
Holliday asserts his § 2254 petition is timely because, he claims, he was resentenced on
March 5, 2012, and his petition was filed within one year after that alleged resentencing. As
noted in the Recommendation, however, he presents no evidence that any resentencing took
place on March 5, 2012, and exhibits submitted by the Respondents affirmatively demonstrate
that his one and only resentencing took place on March 10, 2011, and that no other resentencing
took place.

With his Objections to the Recommendation, Holliday submits two exhibits, Exhibits A
and B, which he says establish that, as he claims, he was resentenced on March 5, 2012. Those
exhibits comprise the Alabama Court of Criminal Appeals Docketing Statement and the
Reporter’s Transcript Order related to Holliday’s (untimely) appeal from the denial of his fourth
Alabama Rule 32 petition. Although the Docketing Statement and Transcript Order indicate that
the “Date of Judgment/Sentence/Order” being appealed from is "3/5/2012," it is clear from the
record that Holliday’s fourth Rule 32 petition was denied on December 6, 2011 – which is why
Holliday’s notice of appeal filed on April 4, 2012, was determined to be untimely. It appears
that Holliday had filed some sort of post-judgment motion from the December 6, 2011, denial of
his fourth Rule 32 petition and that the trial court may have initially set that motion down for a
hearing on March 5, 2012. It also appears that Holliday subsequently withdrew that postjudgment motion and that a hearing was not even held on March 5, 2012. However, even
assuming any such hearing was held, it is clear from the record that it was not a “resentencing”
hearing and that Holliday was not resentenced on March 5, 2012. He is simply wrong about this
matter.
Therefore, the court finds the objection to be without merit, and it is hereby ORDERED
as follows:
1. Petitioner’s objection is OVERRULED.
2. The court ADOPTS the Recommendation of the Magistrate Judge.
3. This petition for writ of habeas corpus under 28 U.S.C. § 2254 is DENIED with
prejudice, and this case is DISMISSED because the petition is time-barred by the one-year
limitation period in 28 U.S.C. §2244(d).

DONE this 7th day of January, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE