Curry v. Stewart et al (INMATE 3)

Filing 30

ORDERED that the Recommendation (Doc. # 28 ) is ADOPTED; that Petitioner's habeas petition, filed pursuant to 28 U.S.C. 2254, is DENIED; and that this action is DISMISSED with prejudice. Final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 9/12/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
AUNTAVIOUS JASHON CURRY,

)
)
Plaintiff,
)
)
v.
) CASE NO. 3:14-CV-998-WKW
) (WO)
CYNTHIA STEWART, Warden, and )
STEVE
MARSHALL,
Attorney )
General of the State of Alabama,1
)
)
Defendants.
)
ORDER
On August 26, 2016, the Magistrate Judge entered a Recommendation (Doc.
# 28) that Petitioner’s habeas petition, filed pursuant to 28 U.S.C. § 2254, is
procedurally barred because of Petitioner’s failure to complete the appellate review
process in state court when he failed to seek a writ of certiorari from the Alabama
Supreme Court. Petitioner filed an Objection (Doc. # 29) to the Recommendation.
The court has conducted an independent and de novo review of those portions of the
Recommendation to which objection is made. See 28 U.S.C. § 636(b).
Petitioner argues that his failure to complete the state court appellate process
should be excused because physical illness prevented him from timely filing the

1

Steve Marshall succeeded Luther Strange as Attorney General. Therefore, Steve Marshall
is automatically substituted for Luther Strange as a Defendant by operation of Rule 25(d) of the
Federal Rules of Civil Procedure.

petition for writ of certiorari.2 The record supports Petitioner’s argument that his
illness was serious and may have made filing the certiorari petition difficult during
at least some portion of the relevant time period. However, for the reasons stated in
the Government’s third response to Petitioner’s habeas petition (Doc. # 27) and the
Recommendation (Doc. # 28), Petitioner has not demonstrated that the illness was
of such severity that timely filing the petition was impossible or so unduly
burdensome as to arguably3 constitute the sort of “objective factor external to the
defense” that would excuse procedural default. Murray v. Carrier, 477 U.S. 478,
488 (1986).
Accordingly, it is ORDERED that the Recommendation (Doc. # 28) is
ADOPTED; that Petitioner’s habeas petition, filed pursuant to 28 U.S.C. § 2254, is
DENIED; and that this action is DISMISSED with prejudice.
Final judgment will be entered separately.
DONE this 12th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

2

The medical records do not support Petitioner’s assertion that he was placed on “bed rest”
prior to being transferred to the hospital, only that he was instructed to “rest.” (Doc. # 27-2 at 12.)
Medical notes from June 4, 2014, indicate that Petitioner reported to medical personnel that lying
down increased his pain and sitting straight up decreased his pain. (Doc. # 27-2 at 8.)
3

As the Magistrate Judge noted in the Recommendation, case law is devoid of support for
the proposition that physical illness excuses procedural default.
2