Prince v. Mitchem et al
MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 11/20/2012. (KAM, )
2012 Nov-20 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
FRANK MITCHELL PRINCE,
BILLY MITCHEM; THE
ATTORNEY GENERAL OF THE
STATE OF ALABAMA,
CASE NO. 4:10-cv-260-SLB
This case is before the court on the Petition for Writ of Habeas Corpus filed by
petitioner Frank Mitchell Prince (“petitioner”). (Doc. 1.)1 Upon consideration of the record,
the court is of the opinion that the Petition is due to be denied.
On December 12, 1994, petitioner pled guilty to first-degree attempted assault in the
Circuit Court of Marshall County, Alabama. (Doc. 1 at 2.) He was sentenced to a prison
term of twenty years on the same day. (Id.)2 Petitioner did not appeal his conviction or
Reference to a document number, [“Doc.
document as it is filed in the court’s record.
”], refers to the number assigned to each
The State has not appeared in this action; therefore, there is no record from the state
court proceedings providing the relevant dates in petitioner’s case. While his Petition states that
petitioner’s judgment of conviction was on December 12, 1994, (doc. 1 at 2), there is no
indication as to whether he was actually sentenced on that date. However, a search in Alacourt,
Alabama’s online access to public trial court records, under petitioner’s case number (CC-1993000170.60), reveals that he was also sentenced on December 12, 2004, and the court takes
sentence, but he did file a petition for writ of mandamus, which was denied by the Alabama
Court of Criminal Appeals on September 25, 1996. See Ex parte Prince, 689 So. 2d 1025
(Ala. Crim. App. 1996). Petitioner also filed two state post-conviction petitions with respect
to his conviction in Marshall County Circuit Court. (Doc. 1 at 3.) The first post-conviction
petition appears to have been filed in 2004 in the Marshall County Circuit Court, (id.),3 and
was brought pursuant to Alabama Rule of Criminal Procedure 32,4 (id). It asserted that the
trial court lacked jurisdiction and that the grand jury was empaneled from two separate
districts. (Id.) This petition was denied, (id.), and the Alabama Court of Criminal Appeals
affirmed the denial of relief on May 20, 2005. See Prince v. State, 926 So. 2d 1089 (Ala.
judicial notice of this fact. See Alacourt, U.S. Court of Appeals Library, https://v2.alacourt.com/
(last visited Oct. 5, 2012).
The Petition lists the date this first state petition was denied as “unknown,”and it does
not list the filing date. A second search of petitioner’s case (CC-1993-000170.60) on Alacourt
reveals a date of filing in 2004. See Alacourt, supra. However, it is not entirely clear whether
the date of filing was in 2003 or 2004, because the court has uncovered some documents that
were filed in petitioner’s case indicating that he filed his first petition in 2003. Regardless of
whether petitioner filed his first petition in 2003 or 2004, it is not material because his claim
would be time-barred in either scenario. Therefore, the court takes judicial notice of the fact that
his first state court petition was filed in either 2003 or 2004. Because Petitioner’s claim became
final on April 24, 1997, one year from when the AEDPA was enacted, (see doc. 6 at 3), the
AEDPA statute of limitations had run before Petitioner ever filed his first state post-conviction
petition, (see id. at 3-4). Moreover, even if Petitioner’s time for filing had tolled while his writ of
mandamus was pending, it would have run as of September 25, 1997, one year from the date that
the writ was denied. See Ex parte Prince, 689 So. 2d at 1025.
Rule 32 is Alabama’s “procedural mechanism” for seeking post-conviction relief.
Arthur v. State, 820 So. 2d 886, 890 (Ala. Crim. App. 2001) (citations omitted) (“While in the
nature of a writ of habeas corpus, Rule 32 is, in fact, a procedural mechanism for seeking postconviction relief and is promulgated under the rule making authority of the Alabama Supreme
Court.” (citations omitted)).
Crim. App. 2005). Prince’s second post-conviction petition, filed in September of 2008,5
and also brought pursuant to Rule 32, raised the following grounds: the trial court lacked
jurisdiction; no indictment existed, and, therefore, petitioner was never indicted; petitioner
did not waive arraignment; and petitioner was denied counsel at arraignment. (Doc. 1 at 3.)
The second petition was denied “sometime [in] 2009,” (id.), and the Alabama Court of
Criminal Appeals affirmed the denial of relief on September 25, 2009. See Prince v. State,
57 So. 3d 211 (Ala. Crim. App. 2009).
On February 1, 2010, petitioner executed the instant Petition, which the Clerk of the
Court received on February 3, 2010. (Doc. 1 at 1.) The Petition alleges that, at the time of
his guilty plea, the trial court lacked jurisdiction; no indictment existed, and, therefore,
petitioner was not indicted; he did not waive arraignment; he was not properly arraigned; he
did not have counsel during arraignment; and, he did not waive any of his rights. (Id. at 4-5,
7-8.) This matter was initially assigned to the Honorable Magistrate Judge John E. Ott.
Judge Ott entered a Report and Recommendation finding that the instant Petition was barred
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEPDA”) statute of
limitations, and that equitable tolling was unwarranted. (See doc. 6); 28 U.S.C. § 2244(d).
The matter was then reassigned to the undersigned for all further proceedings. (Doc. 7.)
Petitioner filed a lengthy Objection to the Report and Recommendation, (doc. 8), the merits
of which will be addressed herein.
Again, the court takes judicial notice of this fact from the records in petitioner’s case
(CC-1993-000170.61) on Alacourt. See Alacourt, supra.
Petitioner objects to the findings in the Report and Recommendation on the following
Under Wood v. Allen, 558 U.S. 290, 130 S. Ct. 841 (2010), petitioner is
entitled to further review of his claims, (doc. 8 at 2-3, 8-9, 10, 16);
Petitioner is entitled to “a full and fair plenary review” based upon the doctrine
and principles of equitable tolling, (id. at 2, 5-6, 16);
Because his claims involved challenges to the state court’s underlying
jurisdiction, remand should be ordered to require the state court to review his
claims, (id. at 3-5, 8-10, 15);
The state court wrongfully dismissed his second post-conviction petition as an
improper successive petition, (id. at 5, 11-12);
Petitioner is entitled to relief (“reverse and remand to the State court for a new
evidentiary hearing,” (id. at 2)) because the state court never provided him
with a “substantive evidentiary hearing under clearly established federal law,”
(id. at 6);
He was deprived of due process of law under the Fifth and Fourteenth
Amendments, (id. at 7);
Under McCleskey v. Zant, 499 U.S. 467 (1991), his claims are entitled to
further review, (id. at 13-15).
1. Application of Wood v. Allen
To the extent that petitioner relies on Wood v. Allen for the proposition that his
petition is entitled to federal review, his argument is misplaced. In Wood, a capital defendant
sought federal habeas relief under 28 U.S.C. § 2254,6 challenging an allegedly unreasonable
factual determination made by the Alabama state court that denied his petition for postconviction relief under Alabama Rule of Criminal Procedure 32. 130 S. Ct. at 846-48. The
prisoner originally brought a constitutional ineffective assistance of counsel claim under
Strickland v. Washington, 455 U.S. 668 (1984), in an Alabama state post-conviction
proceeding. Id. at 845-46. The state court concluded that the prisoner’s counsel had not
been deficient under Strickland, but rather had made a strategic decision not to present
certain evidence during the penalty phase of his trial. Id. at 846. On a federal habeas petition
before the Supreme Court, the prisoner argued that the state court’s conclusion was an
unreasonable determination of the facts under § 2254(d)(2). Id. at 848. The Supreme Court
held that it had not been an unreasonable determination of the facts to conclude that counsel
The relevant provisions, 28 U.S.C. § 2254(d)(1) and (d)(2), provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
had made a strategic decision. See id. at 850 (“[E]ven if it is debatable, it is not unreasonable
. . . .”). In addition, it refused to address the question of whether the state court had
unreasonably applied Strickland under § 2254(d)(1), stating that “[w]hether the state court
reasonably determined that there was a strategic decision under § 2254(d)(2) is a different
question from whether the . . . application of Strickland was reasonable under § 2254(d)(1).
Id. at 851.
It is somewhat understandable that petitioner would attempt to rely on Wood because
the procedural posture of the case is similar to his own: the prisoner in Wood filed a petition
pursuant to § 2254, challenging an Alabama state court’s decision under Alabama Rule 32.
However, the similarities stop there. As both the Magistrate Judge’s Order, (doc. 4), and
Report and Recommendation, (doc. 6), made clear, the real question presented in petitioner’s
case at this point is whether his federal petition for habeas corpus is timely under the
provisions set forth in the AEDPA. See 28 U.S.C. § 2244(d).7 Wood did not address the
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court. The limitation period
shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by the Supreme Court
AEDPA statute of limitations, and it is therefore not applicable to petitioner’s case.
Moreover, even if timeliness were not an issue in this case, petitioner would not be
able to rely on Wood for his claims. Petitioner’s reliance on Wood rests on his argument that
the state court’s exercise of jurisdiction over his claims was “unreasonable,” because under
Alabama law, a court cannot exercise jurisdiction over a case in which there was no
indictment. (Doc. 8 at 2-3, 6.) He also asserts in his Objection that the state court’s
determination was “contrary to  clearly established federal law.” (Doc. 8 at 16.) After
reviewing these arguments, it is apparent that in reality, petitioner is claiming that the
Alabama court misapplied the law to his case, which is a claim that would fall under
§ 2254(d)(1). Because the Supreme Court specifically chose not to address arguments under
§ 2254(d)(1) in Wood, petitioner’s reliance on it is misguided.8
In addition, petitioner also alleges that the Magistrate Judge’s Report and
Recommendation was “unreasonable” because it did not find his circumstances sufficiently
extraordinary to warrant equitable tolling. (Doc. 8 at 16.) Though a finding of due diligence
and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.
It is also worth noting that petitioner begins his Objection by stating that “Prince
maintains that for the most part the factual background in the procedural history, seemingly
remains somewhat on point,” (doc. 8 at 1), indicating he does not truly dispute any factual
determinations made by the state court.
and extraordinary circumstances for purposes of tolling under the AEDPA statute of
limitations is indeed a question of fact, see Drew v. Dep’t of Corr., 297 F.3d 1278, 1286-87
(11th Cir. 2002), the AEDPA standards discussed in Wood apply only to a federal court’s
review of state court determinations. See § 2254(d)(2) (stating a federal habeas court
reviewing a state court judgment may only grant relief if the state court decided the case
based on an unreasonable determination of the facts); see also Wood, 130 S. Ct. at 845 (“The
Antiterrorism and Effective Death Penalty Act of 1996 contains two provisions governing
federal-court review of state-court factual findings.” (emphasis added)). They do not apply
to a federal district court’s review of a magistrate judge’s findings. See Fed. R. Civ. P.
72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”). As discussed below, this court has
independently reviewed the record in this action, agrees with, and therefore adopts the
Magistrate Judge’s Report and Recommendation.
2. Equitable Tolling
Petitioner’s contention that the statute of limitations prescribed by 28 U.S.C.
§ 2244(d) should be extended based on the doctrine of equitable tolling is similarly
misplaced. Judge Ott thoroughly addressed whether equities warranted the application of
equitable tolling in his Report and Recommendation by stating, in pertinent part, as follows:
Upon an examination of the facts presented herein, the court does not
find that the petitioner’s circumstances are sufficiently “extraordinary” to
warrant equitable tolling. He asserts that he should receive such assistance
because he tried numerous times over the last ten to fifteen years
(approximately 100-150 times) to obtain a copy of the alleged indictment in
the underlying State action to no avail. (Doc. 5). The court finds that his
inability to obtain a copy of the indictment, which he asserts does not exist,
does not excuse his failure to timely file a federal habeas corpus petition for
“The petitioner has the burden of proving entitlement to equitable
tolling by showing that ‘extraordinary circumstances that were both beyond his
control and unavoidable even with diligence’ prevented filing the petition on
time. Akins [v. United States], 204 F.3d  at 1090 [(11th Cir. 2000)].”
Jones v. United States, 304 F.3d 1035, 1040 (11th Cir. 2002). This he has
failed to do. Therefore, he is entitled to no relief via this contention to the
extent it is raised in his pleadings.
(Doc. 6 at 6-7 [footnote omitted].) The court agrees with the Report and Recommendation
that petitioner’s failure to comply with the statutory deadline for seeking habeas relief was
not the result of “extraordinary circumstances.” Petitioner’s argument in his Objection
focuses primarily on the errors made by the Alabama state court in applying its own law, (see
doc. 8); as a result, he does not even fully address why tolling should be permissible, other
than to claim that he acted with “due diligence” in attempting to get a copy of his indictment
from the State. (Doc. 8 at 5-6.) Moreover, as the Report and Recommendation specifically
observed, petitioner’s alleged inability to obtain a copy of his indictment did not excuse, nor
did it effectively preclude him, from filing the instant petition within the applicable
limitations period to challenge his conviction. See, e.g., Davis v. Sec’y, Dept. of Corr., 809CV-702-T-30MAP, 2009 WL 4730548, at *1-2 (M.D. Fla. Dec. 7, 2009) (noting that the
factual predicate of the claim regarding a defective indictment was “known or should have
been known to petitioner before his conviction and sentence became final,” making his
petition untimely). Therefore, petitioner is not entitled to equitable tolling of the AEDPA
one-year statute of limitations. Cf. Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir.
2007) (finding extraordinary circumstances and allowing equitable tolling in federal habeas
case where state affirmatively misled the defendant as to filing instructions).
3. State Court Challenges
Petitioner’s next three objections: (1) that his challenges involve state law
jurisdictional claims, (2) that his petition was a proper successive petition, and (3) that he was
never afforded an evidentiary hearing are also without merit. These three arguments are
closely related. Petitioner essentially claims the state court wrongfully dismissed his second
petition as opposed to affording him the evidentiary hearing to which he was entitled under
state law, where he would have attempted to prove that there had been no indictment, and
therefore, that the state court lacked jurisdiction. (See doc. 8.) Furthermore, all three
arguments are related on a broader scale because they all contend that an Alabama court
erred in applying Alabama state law. Expanding upon these state law claims in his
Opposition, petitioner further alleges that his petition cannot be barred by the AEDPA statute
of limitations because state jurisdictional claims can never be barred by a statute of
limitations. (Doc. 8 at 3-5.) In short, none of these arguments, grounded in state law, affect
the application of 28 U.S.C. § 2244(d) as a statutory bar to the instant litigation. See, e.g.,
Farris v. Forniss, No. 3:10-CV-270-MEF, 2012 WL 1533866, at *3 (M.D. Ala. Apr. 2,
2012) (“Whether or not petitioner has asserted a valid challenge to the state court’s
jurisdiction, neither the limitations statute nor federal case law makes an exception for
alleged jurisdictional issues arising under state law.”); Davis, 2009 WL 4730548, at *1
(“There is no exception under AEDPA’s statute of limitation for a § 2254 claim that the state
court lacked subject matter jurisdiction to impose the sentence for the conviction because the
indictment was defective.”).
Moreover, even if this case were timely, federal courts generally will not review a
state court’s decision based upon its own state law. Though federal courts may determine
the constitutionality of state laws, state courts are the final interpreters of state law. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We have stated many times that ‘federal
habeas corpus relief does not lie for errors of state law.’ Today, we reemphasize that it is not
the province of a federal habeas court to reexamine state-court determinations on state-law
questions. In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” (citations
omitted)). As such, petitioner’s claims that an Alabama court erred in applying Alabama
state law are barred by the AEDPA statute of limitations; however, even if they were not,
they would not be reviewable by this court on a federal habeas petition.
4. Due Process Claim
Though his argument is not entirely clear, to the extent petitioner claims that his
alleged lack of indictment and waiver of arraignment violates the Due Process Clause, (see
doc. 8 at 7), this claim is also time-barred. As just discussed, federal courts may review
federal constitutional claims (though only under the strict limits of the AEDPA on federal
habeas); however, they cannot review claims on federal habeas once they are time-barred.
See § 2244(d); Daniels v. United States, 532 U.S. 374, 381 (2001) (“Our system affords a
defendant convicted in state court numerous opportunities to challenge the constitutionality
of his conviction. . . . These vehicles for review, however, are not available indefinitely and
without limitation. Procedural barriers, such as statutes of limitations . . . limit access to
review on the merits of a constitutional claim.”). The very purpose of the AEDPA statute
of limitations is to bring some level of finality to the post-conviction process. See Day v.
McDonough, 547 U.S. 198, 205-06 (2006) (“The AEDPA statute of limitation promotes
judicial efficiency and conservation of judicial resources, safeguards the accuracy of state
court judgments by requiring resolution of constitutional questions while the record is fresh,
and lends finality to state court judgments within a reasonable time.” (quoting Acosta v.
Artuz, 221 F.3d 117, 123 (2d Cir. 2000)). This purpose would not be served if petitioner’s
claim were able to continue after the applicable statute of limitations; therefore, petitioner’s
due process claim is time-barred under the AEDPA.9
In addition, aside from the timeliness issue, when a state court clearly disposes of a case
for state law reasons, a federal court typically will not review an accompanying federal claim if
the state court’s decision was based on adequate and independent state law grounds. See
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (holding that adequate and independent
state law doctrine precludes review of federal claims on federal habeas, whether the state law is
substantive or procedural). This doctrine could potentially apply to petitioner’s case; however,
given the court’s lack of information regarding the proceedings below, and the fact that
petitioner’s claims are clearly barred by the statute of limitations, the court need not address the
issue at this point.
5. Application of McCleskey v. Zant
Finally, to the extent petitioner relies on McCleskey v. Zant, 499 U.S. 467 (1991), in
support of his claim that he is entitled to federal review, this argument is also misplaced.
McClesky was a case involving successive federal petitions, where the prisoner filed a postconviction petition in Georgia state court, 499 U.S. at 472, then went on to file two habeas
corpus petitions in a federal district court, id. at 472-74. The question the Supreme Court
addressed was whether the second federal habeas petition constituted “abuse of the writ” so
that the claims it presented could not be entertained by a federal court. Id. at 470. The Court
held that filing the successive petition did constitute abuse of the writ, id., and it set forth a
new standard for what a federal habeas petitioner would have to prove in order for a federal
court to entertain the claims in a successive petition, id. at 493-96 (“The cause and prejudice
analysis we have adopted for cases of procedural default applies to an abuse-of-the-writ
inquiry . . . .”).
Accordingly, the issues that were addressed in McCleskey are not the same as those
presented in this case. As discussed earlier, the question presented here is whether the
federal petition is timely, and as a natural extension of that, whether petitioner is entitled to
equitable tolling. Because McCleskey only addressed the standard that a federal habeas
petitioner must meet in order to bring a successive petition in federal court, which petitioner
has not attempted to do in this case, it is not applicable here. Moreover, McCleskey was
decided before the enactment of the AEDPA in 1996, which implemented the one-year
statute of limitations. See § 2244(d)(1). Therefore, even if McCleskey were applicable,10 this
case would still be barred by the statute of limitations. See, e.g., Pace v. DiGuglielmo, 544
U.S. 408, 419 (2005) (denying consideration of the merits of the petitioner’s claim because
statutory and equitable tolling did not apply, and therefore, his petition was barred by the
AEDPA statute of limitations).
Petitioner has offered nothing that permits this court to ignore the applicable one-year
statute of limitations. See § 2244(d)(1). Therefore, his action is time-barred, and he is
entitled to no further review. See Duncan v. Walker, 533 U.S. 167, 168 (2001) (addressing
AEDPA one-year limitation period and observing the “AEDPA’s purpose to further the
principles of comity, finality, and federalism”); Johnson v. United States, 340 F.3d 1219,
1224 (11th Cir. 2003) aff’d, 544 U.S. 295 (2005) (“It is generally accepted that one of the
principal functions of AEDPA was to ensure a greater degree of finality for convictions.”);
Jones v. United States, 304 F.3d 1035, 1039 (11th Cir. 2002) (“A fundamental purpose for
the AEDPA was to establish finality in post-conviction proceedings.”)
The court has considered the entire file in this action together with the Magistrate
Judge’s Report and Recommendation and has reached an independent conclusion that the
In reality, even aside from the statute of limitations, McCleskey would not be
applicable because the AEDPA also altered the standard for bringing a successive petition which
McCleskey had adopted. See Gonzalez v. Sec’y for Dept. of Corr., 366 F.3d 1253, 1269 (11th
Cir. 2004) aff’d sub nom, Gonzalez v. Crosby, 545 U.S. 524 (2005) (discussing the evolution
“toward greater finality of judgments through increasingly tight restrictions on . . . successive
petitions” and noting the AEDPA’s shift from McCleskey).
Magistrate Judge’s Report and Recommendation is due to be adopted and approved with the
Therefore, the court hereby adopts and approves the findings and
Recommendation of the Magistrate Judge. The writ of habeas corpus is time-barred and due
to be denied. An appropriate order will be entered.
DONE, this 20th day of November, 2012.
SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE
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