Belser v. Myers et al

Filing 14

MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/3/2018. (KAM)

FILED
2018 Jan-03 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHNNIE BELSER,
Petitioner,
v.
WALTER MYERS, Warden, et al.,
Respondents.

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Case No.: 2:15-cv-00071-RDPSGC

MEMORANDUM OPINION
On December 12, 2017, the Magistrate Judge entered a Report recommending
this pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by
Johnnie Belser be denied as time-barred and/or procedurally defaulted. (Doc. 12).
The Report further recommended denial of a certificate of appealability. (Id.) On
December 26, 2017, the court received Petitioner's objections, which are addressed
below. (Doc. 13).
Petitioner does not take issue with the facts set forth in the report and
recommendation. (See Doc. 13 at 1). Instead, as he did in previous briefing,
Petitioner contends his untimely and procedurally defaulted federal claims may
proceed because prison staff provided him with a form incorrectly stating the
deadline to file a state post-conviction petition pursuant to Rule 32 of the Alabama
Rules of Criminal Procedure was two years, rather than one. (See id. at 4).

Petitioner argues—as he did in previous filings—that because he was held in
isolation and did not have free access to the law library, he relied exclusively on the
erroneous forms provided by prison officials; this reliance caused Petitioner to file
an untimely Rule 32 petition, thus robbing him of the opportunity to exhaust his
habeas claims in state court. (Id. at 3).
To the extent Petitioner contends the out-of-date form regarding Rule 32
excuses his untimely claims, his arguments fail. As explained in the Report and
Recommendation, Petitioner filed the instant petition more than a year after the
limitation period applicable to his federal claims expired. (See Doc. 12 at 7).
Moreover, even if the Rule 32 petition had been timely filed, thus triggering statutory
tolling, the instant claims would still be time-barred under the federal limitation
period. (Id. at 7-8).
Petitioner's arguments that the erroneous Rule 32 form excuses his procedural
default are similarly without merit. As noted in the Report and Recommendation,
the facts Petitioner alleges do not allow this court to consider his procedurally
defaulted claims. (Doc. 12 at 11-12). Petitioner's objections do not overcome the
deficiencies noted in the Magistrate Judge's report.1

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Petitioner's objections also make a passing reference to actual innocence. (Doc. 13 at 5).
However, nowhere has Petitioner presented the type of evidence required to sustain an actual
innocence claim.
2

After careful consideration of the record in this case, Petitioner's objections
are OVERRULED. The court ADOPTS the report of the Magistrate Judge and
ACCEPTS her recommendations. In accordance with the recommendations, the
court finds that Petitioner's claims are due to be denied as time-barred and
procedurally defaulted; a certificate of appealability is due to be denied.
A separate order will be entered.
DONE and ORDERED this January 3, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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