Miller v. State of Alabama

Filing 8

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 2/28/18. (SAC )

FILED
2018 Feb-28 AM 09:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALONZO MILLER,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No.: 2:17-cv-01329-KOB-SGC

MEMORANDUM OPINION
On January 3, 2018, the magistrate judge entered a report recommending the claims in this
petition for writ of habeas corpus filed on behalf of Alonzo Miller pursuant to 28 U.S.C. § 2254, be
denied as time-barred. (Doc. 6). On January 15, 2018, counsel for Petitioner filed objections to the
magistrate judge's report and recommendation. (Doc. 7). Petitioner objects on two grounds: (1) the
magistrate judge disregarded the legal standards used to determine whether Petitioner's claims are
untimely; and (2) the magistrate judge erred in recommending denial of a certificate of appealability.
(Id.). Petitioner's objections are addressed in turn.
As to timeliness, Petitioner contends the magistrate judge erred in refusing to apply equitable
tolling. As in Petitioner's response to the magistrate judge's order to show cause regarding the
facially apparent tardiness of his claims, the objections argue Petitioner is entitled to equitable tolling
because of (1) limited access to legal materials; (2) lack of funds; and (3) the difficulty associated
with litigating from prison. (Doc. 7 at 2). Petitioner generally contends that, under these conditions,
"he pursued his claim with as much diligence as he could." (Id.).
As with the response to the magistrate judge's order to show cause, Petitioner's objections
regarding equitable tolling are wholly based on vague and conclusory allegations. See Hutchinson

v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012) ("allegations supporting equitable tolling must be
specific and non-conclusory"). The court agrees with the magistrate judge’s analysis. To the extent
Petitioner relies on limited access to legal materials, he has not alleged that he did not have access
to the prison law library. See Akins v. United States, 204 F.3d 1086, 1089 (11th Cir. 2000). To the
extent Petitioner relies on his lack of funds, he does not describe how this prevented him from filing
a timely petition. (See Doc. 6 at 6) (noting that "federal habeas petitioners unable to afford the
applicable $5.00 filing fee may move for leave to proceed in forma pauperis."). Finally, Petitioner's
general reliance on unspecified difficulties associated with litigating from prison does not constitute
an extraordinary circumstance justifying equitable tolling.

(See Doc. 6 at 6-7) ("following

Petitioner's logic, every pro se prisoner would be entitled to equitable tolling, running afoul of the
Eleventh Circuit's holding that such tolling 'is limited to rare and exceptional circumstances' and
'typically applied sparingly.' Lawrence, 421 F.3d at 1226").
Likewise the objections do not specify any act of diligence Petitioner performed in attempting
to file a petition. Instead, as in briefing presented to the magistrate judge, Petitioner merely alleges
"he pursued his claim with as much diligence as he could." (Doc. 7 at 2; see Doc. 5 at 2). This
conclusory statement is insufficient to establish diligence for purposes of equitable tolling. See Diaz,
362 F.3d at 702 n.7. For the foregoing reasons, the magistrate judge correctly concluded Petitioner
is not entitled to equitable tolling. Without the benefit of equitable tolling, Petitioner's claims are
time-barred.
Having concluded Petitioner's claims are untimely, his objections concerning the denial of
a certificate of appealability fail as well. Reasonable jurists would not disagree that Petitioner's
claims are time-barred. See Barber v. Holt, No. 16-1942, 2016 WL 6246733 at *2 (N.D. Ga. Oct.
2

26, 2016) (denying certificate of appealability "because Petitioner cannot show that reasonable jurists
could debate the dismissal of this habeas action as time barred"). In any event, Petitioner may seek
a certificate of appealability from the Eleventh Circuit.
After careful consideration of the record in this case, including the magistrate judge’s report
and Petitioner's objections thereto, Petitioner's objections are OVERRULED. The court ADOPTS
the report of the magistrate judge and ACCEPTS her recommendations. In accordance with the
recommendation, the court finds Petitioners claims are due to be dismissed as time-barred. A
certificate of appealability is due to be denied.
The court will enter a separate Final Order.
DONE and ORDERED this 28th day of February, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

3