Levert v. Tipton et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 05/23/2017. (KBB)
2017 May-23 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHARLES TIPTON, et al.,
Civil Action Number:
On May 5, 2017, the magistrate judge entered a Report and
Recommendation, doc. 8, recommending that the petition for writ of habeas corpus
be dismissed with prejudice. Petitioner Robert Levert filed objections on May 19,
2017. Doc. 9. The court has considered the entire file in this action, together with
the report and recommendation, and has reached an independent conclusion that
the report and recommendation is due to be adopted and approved.
Levert raises five objections to the report and recommendation’s finding that
his claims were barred by the applicable statute of limitations. The first of these
objections reasserts his petition’s second claim, which is that he lacked counsel at
arraignment in violation of the Sixth Amendment. Compare doc. 9 at 3 with doc. 1
at 7. The second faults the magistrate judge’s conclusion that Levert failed to
present “new evidence” sufficient to demonstrate his actual innocence, arguing that
“clerk records and transcript that had not previously been review [sic] by lower
court . . . must be considered new discovered evidence.” Doc. 9 at 3. Levert’s third
objection argues the magistrate judge erred by finding he failed to exercise due
diligence to timely file his habeas petition and offers examples of his diligence,
including an attached letter from the Alabama Department of Archives and History
responding to a record request from Levert, dated July 8, 2015, and a record
request directed to the Jefferson County Circuit Clerk, dated September 17, 2015.
Id. at 4, 6–7. Fourth, Levert contends the magistrate judge abused his discretion
when he failed to grant Levert an evidentiary hearing. Id. at 4. Finally, Levert
states his rights to due process and equal protection were violated in this
proceeding when he was “denied the benefit of a record to pursue these claims.”
Id. at 5.
Levert’s objections are meritless. Levert’s first objection does not actually
contest the magistrate judge’s findings that his claims are time-barred, nor does it
offer any reason to conclude that Levert can overcome the statute of limitations.
And as for Levert’s fourth claim, that no evidentiary hearing was held in this case,
he is not entitled to an evidentiary hearing “if the record refutes the applicant's
factual allegations or otherwise precludes habeas relief[.]” Schriro v. Landrigan,
550 U.S. 465, 474, 127 S. Ct. 1933, 1940, 167 L. Ed. 2d 836 (2007). The
magistrate judge did not err in failing to provide a rationale for not holding an
evidentiary hearing in this case due to the fact that Levert’s claim are time-barred.
Levert’s second, third, and fifth claims overlap in that they implicate
Levert’s inability to obtain the records he says demonstrate his actual innocence.
To the extent Levert argues equitable tolling saves his claim from being timebarred because these records were unavailable to him until they were supplied by
the state in this habeas action, as the magistrate judge stated, Levert offers no
reason why the court should find that his efforts within the last several years to
obtain these records supports a finding that he has diligently tried over the last
thirty years to retrieve these records, or that an extraordinary circumstance
prevented him from obtaining the documents prior to the expiration of the statute
of limitations in April 1997. See Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Moreover, these
records—which Levert simultaneously argues were produced in this case, doc. 9 at
3 (“[t]his court at bar had the benefit of clerk records and transcript that had not
previously been review [sic] by any lower court”), and unavailable to him in this
case, doc. 9 at 5 (“[t]his court committed error by violating petitioner’s Due
Process and Equal Protection Clause, Fifth Amendment U.S.C. [sic] because Mr.
Levert did not have the benefit of a record to pursue these claims”)—are not “new
evidence” showing Levert was actually innocent because they do not establish, as
he claims, that he executed a plea agreement prior to trial. Rather, the records show
only that there were negotiations that evidently failed to produce a plea
agreement.1 See doc. 4-1 at 2–12. Finally, as for Levert’s claim he was unable to
utilize the records produced in this case, he filed a traverse, doc. 6, and an
amendment to that traverse, doc. 7, following the production of the documents, and
could have raised any factual or legal argument he believed to be supported by the
records in his traverse. It is simply unclear how this court contributed to whatever
error Levert believes resulted from the fact that he had not, allegedly, previously
had access to those records.
Accordingly, the court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and conclusions of this
court. The petition for writ of habeas corpus is due to be dismissed. A separate
order will be entered.
This court may issue a certificate of appealability “only if the applicant has a
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
While Levert argues that the records presented in this action “had not previously been reviewed
by any lower court,” this is plainly incorrect, as they all relate to either Levert’s direct appeal of
his conviction, (docs. 4-1, 4-2, 4-3, 4-4, & 4-5), or his Rule 32 proceeding, (docs. 4-6, 4-7, 4-8,
4-9, 4-10, 4-11, 4-12, & 4-13).
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This
court finds Petitioner’s claims do not satisfy either standard.
DONE the 23rd day of May, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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