Evans v. Price et al
MEMORANDUM OPINION. Signed by Judge James H Hancock on 6/17/2014. (JLC)
2014 Jun-17 AM 10:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
BRYANT BERNARD EVANS,
CHERYL PRICE, Warden, et al.,
Case No. 2:13-cv-02151-JHH-TMP
The magistrate judge filed his Report and Recommendation (doc. 11) in the abovestyled cause on June 3, 2014, recommending that the § 2254 petition for writ of habeas
corpus challenging the constitutional validity of petitioner’s conviction be dismissed with
prejudice as time-barred. Bryant Bernard Evans (“Petitioner”) filed his objections (doc. 12)
to the Report and Recommendation on June 10, 2014.1 Having now carefully reviewed and
considered de novo the objections to the Report and Recommendation, the report itself, and
other materials in the court file relevant to the case, the court finds that the report is due to
be ADOPTED and the recommendation ACCEPTED.
Under the “prison mailbox rule,” the objections are deemed filed on the day it was
signed and delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 108 S. Ct.
2379, 101 L. Ed. 2d 245 (1988). Therefore, although Petitioner’s objections to the Report and
Recommendation and the Motion for Reconsideration were received by the court on June 11,
2014, the date of Petitioner’s signature is the deemed filing date.
In his objections, Petitioner argues that the magistrate judge failed to properly
calculate the tolling period brought on by Petitioner’s Rule 32 petition. Specifically, he
argues that he was due to be granted ninety (90) days subsequent to the Alabama Supreme
Court’s denial of certiorari – the time allowed for him to petition the United States Supreme
Court for certiorari review. Petitioner cites Coates v. Byrd, 211 F.3d 1225, 1227 (11th Cir.
2000), to support his position. However, Petitioner has fundamentally misread Coates which,
in fact, supports the magistrate judge’s determination.
In Coates, the Eleventh Circuit affirmed the district court’s denial of a petitioner’s
application on statute of limitations grounds and specifically addressed the issue of “whether
the time limit for filing [the petitioner’s] federal habeas application was tolled during the
ninety-day period following the Georgia Supreme Court’s refusal to review the state trial
court’s denial of his petition for collateral relief.” 211 F.3d at 1226. The Eleventh Circuit
agreed with the Tenth Circuit’s determination of the matter, which employed a comparison
of the language in 28 U.S.C. Sections 2244(d)(1) and 2244(d)(2). The Eleventh Circuit
The statute specifies that during direct appeal the tolling lasts until (or
more accurately, the limitations period begins to run from) “the date on
which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” See 28 U.S.C. §
2244(d)(1)(A). By contrast, the tolling during state collateral review
occurs only while the application for “State post-conviction or other
collateral review . . . is pending.” See 28 U.S.C. § 2244(d)(2).
As the Tenth Circuit explained in Rhine, the difference in the wording
of the two provisions is significant. A judgment does not become
“final by the conclusion of direct review or by the expiration of the time
for seeking such review,” see 28 U.S.C. § 2244(d)(1)(A), until the
Supreme Court has had an opportunity to review the case or the time
for seeking review has expired. See Rhine, 182 F.3d at 11156; cf.
Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93
L.Ed. 2d 649 (1987)(defining a state conviction as “final” for
retroactivity doctrine purposes when the availability of direct appeal
has been exhausted, including the denial of a certiorari petition by the
United States Supreme Court or the expiration of time for seeking such
review). On the other hand, an application “for State post-conviction
or other collateral review . . . is pending,” 28 U.S.C. § 2244(d)(2), only
so long as the case is in the state courts. See Rhine, 182 F.3d at 1156.
“A petition for writ of certiorari to the United States Supreme Court is
simply not an application for state [court] review of any kind; it is
neither an application for state post-conviction review nor an
application for other state collateral review.” Id.
We agree with the Tenth and Fifth Circuits that the time during which
a petition for writ of certiorari is pending, or could have been filed,
following the denial of collateral relief in the state courts, is not to be
subtracted from the running of time for 28 U.S.C. § 2244(d)(1) statute
of limitations purposes.
Coates v. Byrd, 211 F.3d 1225, 1226-27 (11th Cir. 2000)(emphasis added). In other words,
the ninety-day period in which Petitioner could have filed in the United States Supreme Court
a petition for writ of certiorari regarding the denial of his Rule 32 petition is not part of the
tolling period because, upon the Alabama Supreme Court’s denial of certiorari, the Rule 32
petition no longer was “pending” as defined in 28 U.S.C. § 2244(d)(2). See Steed v. Head,
219 F.3d 1298, 1300 (11th Cir. 2000)(affirming the district court’s determination that a
petition for writ of certiorari to the United States Supreme Court following the denial of
post-conviction relief “does not toll the statute of limitations under Section 2244(d)(2).”).
Therefore, because the magistrate judge carefully and correctly addressed the issue
raised by Petitioner, his objections to the Report and Recommendation are meritless and are
hereby OVERRULED. Having carefully reviewed and considered de novo all the materials
in the court file, including the Report and Recommendation, the Court is of the opinion that
the magistrate judge's report is due to be and is hereby ADOPTED and the recommendation
is ACCEPTED. Accordingly, the complaint is due to be dismissed with prejudice. A Final
Judgment will be entered.
The Clerk is DIRECTED to mail a copy of the foregoing to Petitioner.
DONE this the 17thday of June, 2014.
SENIOR UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?