Sears v. Thomas et al (INMATE 3)

Filing 12

ORDERED that on or before 12/30/2013, Sears 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 USC § 2244(d). Signed by Honorable Judge Charles S. Coody on 12/4/2013. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JAMES GREGORY SEARS, # 269568,
Petitioner,
v.
WILLIE THOMAS, et al.,
Respondents.

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Civil Action No. 3:13cv778-TMH
(WO)

ORDER
The respondents have filed an answer (Doc. No. 11) in which they argue, among other
things, that the pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by
Alabama inmate James Gregory Sears (“Sears”) on October 15, 2013,1 is barred by the oneyear limitation period applicable to § 2254 petitions. See 28 U.S.C. § 2244(d) (setting forth
one-year limitation period).
Procedural History
Exhibits submitted by the respondents reflect that on October 14, 2009, a Macon
County jury found Sears guilty of murder in violation of § 13A-6-2, Ala. Code 1975. Resp.
Ex. 1 at R. 271. On December 4, 2009, the trial court sentenced Sears to 42 years in prison.
Id. at R. 294. On May 21, 2010, on direct appeal, Sears’s conviction was affirmed by the

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Although the petition was date-stamped as received in this court on October 21, 2013, the
petitioner avers that he signed it on October 15, 2013. Under the “mailbox rule,” a pro se inmate’s
petition is deemed filed the date it is delivered to prison officials for mailing, presumptively, the date
it is signed by the petitioner. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States,
173 F.3d 1339, 1340-41 (11th Cir. 1999).

Alabama Court of Criminal Appeals. Resp. Ex. 4. Sears did not file an application for
rehearing in the Court of Criminal Appeals or seek certiorari review in the Alabama Supreme
Court, and the Court of Criminal Appeals issued a certificate of judgment on June 9, 2010.
Resp. Ex. 5.2
On June 8, 2011, Sears filed a Rule 32 (Ala.R.Crim.P.) petition in the trial court
challenging his murder conviction and sentence; at the same time, he filed a request to
proceed in forma pauperis. On August 23, 2011, the trial court denied Sears’s in forma
pauperis request and dismissed his Rule 32 petition. Pet. Ex. 1. On November 11, 2011,
after paying the required filing fee, Sears again filed a Rule 32 petition, raising several claims
of ineffective assistance of trial and appellate counsel. Resp. Ex. 6 at 47. An evidentiary
hearing was held on Sears’s petition, and on November 6, 2012, the trial court entered an
order denying the Rule 32 petition. Id. at 91-96.
Sears appealed the denial of his Rule 32 petition to the Alabama Court of Criminal
Appeals, and on June 28, 2013, the Court of Criminal Appeals issued a memorandum
opinion affirming the trial court’s judgment. Resp. Ex. 10. Sears filed an application for
rehearing, which was overruled on July 26, 2013. Resp. Ex. 11. Sears filed a petition for
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On or around November 15, 2010, Sears filed a § 2254 petition for habeas corpus relief with
this court. Civil Action No. 3:10cv1009-ID, Doc. No. 1. He later informed the court that he wished
to voluntarily dismiss his habeas petition to pursue a Rule 32 (Ala.R.Crim.P.) petition in state court.
Id., Doc. No. 15. This court had previously advised Sears of the dangers of voluntarily dismissal,
including advising him that the pendency of the federal habeas action did not toll the one-year
limitation period set forth in 28 U.S.C. § 2244(d) and that dismissal of his action without prejudice
would not preclude a determination that a subsequently filed § 2254 petition was untimely. Id., Doc.
No. 14. On June 27, 2011, this court granted Sears’s motion for voluntary dismissal of the habeas
action. Id., Doc. No. 16.
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a writ of certiorari with the Alabama Supreme Court on August 12, 2013 (Resp. Ex. 14), and
on August 20, 2013, the Alabama Supreme Court dismissed the petition as untimely filed
(Resp. Ex. 15). The Alabama Court of Criminal Appeals issued a certificate of judgment
dated August 14, 2013. Resp. Ex. 16. As noted above, Sears filed the instant federal habeas
petition on October 15, 2013.
Discussion
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.
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28 U.S.C. § 2244(d).
Because Sears, on direct appeal, did not seek certiorari review in the Alabama
Supreme Court, his conviction became final (and the one-year limitation period in §
2244(d)(1)(A) began to run) when the Alabama Court of Criminal Appeals issued the
certificate of judgment in the case, i.e., on June 9, 2010. See Pugh v. Smith, 465 F.3d 1295,
1300 (11th Cir. 2006).
As noted, Sears filed a Rule 32 petition in the trial court on June 8, 2011. Pursuant
to 28 U.S.C. § 2244(d)(2), the one-year limitation period for filing a § 2254 petition – which
by that time had run for 364 days – was tolled. See Tinker v. Moore, 255 F.3d 1331, 1335
n.4 (11th Cir. 2001). The Rule 32 petition remained a “properly filed” state petition until
August 23, 2011, when the trial court denied Sears’s in forma pauperis request and dismissed
the Rule 32 petition. See Hyde v. State, 950 So.2d 334, 353 (Ala. Crim. App. 2006). Not
until November 11, 2011 – when Sears paid the required filing fee and again filed a Rule 32
petition – did Smith again have a “properly filed” petition pending in the state courts. A total
of 80 days ran between August 23, 2011, and November 11, 2011, meaning that a total of
444 days (364 days + 80 days) had run on the one-year federal limitation period.
The November 11, 2011, filing of Sears’s Rule 32 petition again tolled the federal
limitation period under § 2244(d)(2). The limitation period remained tolled until August 14,
2013, when the Alabama Court of Criminal Appeals issued a certificate of judgment
finalizing the state court proceedings on Sears’s Rule 32 petition. Sixty-two (62) days later,

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Sears filed the instant § 2254 petition. By that time, the federal limitation period had run for
a total of 506 days (444 days + 62 days).
For the reasons discussed above, it appears that the one-year limitation period
contained in 28 U.S.C. § 2244(d) expired before Sears filed the instant petition.
Accordingly, it is
ORDERED that on or before December 30, 2013, Sears 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).
Done this 4th day of December, 2013.

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

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