Coker v. Gordy et al

Filing 21

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 4/20/2016. (PSM)

FILED
2016 Apr-20 AM 10:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

LARRY GWEN COKER,
Petitioner,
vs.
CHRISTOPHER GORDY,
Warden, et al.,
Respondents.

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Case No. 4:15-cv-666-LSC-TMP

MEMORANDUM OPINION
The magistrate judge filed his Report and Recommendation in this matter on
March 17, 2016, recommending that the petition for writ of habeas corpus be
denied and dismissed with prejudice as time-barred under 28 U.S.C. § 2244(d). In
doing so, the magistrate judge noted that “petitioner has neither argued that he is
entitled to equitable tolling nor asserted any facts that might give rise to the
application of equitable tolling.” (Doc. 18, p. 7). The magistrate judge also noted
that, even if not time-barred, the claims in the petition are procedurally defaulted
because petitioner did not seek review in the Alabama Supreme Court, as required
by O’Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
(Doc. 18, at fn. 5). On March 29, 2016, the petitioner, Larry Gwen Coker, filed his

timely objections to the report and recommendation, contending that he is entitled
to equitable tolling of the one-year time limitation because he suffered a serious
illness during a portion of that time.

On April 6, 2016, petitioner filed

“supplemental discovery,” which will be treated by the court as supplementing his
objections to the report and recommendation.
Petitioner does not appear to dispute the magistrate judge’s account of the
procedural history of the conviction at issue. The magistrate judge reported:

On June 26, 2008, petitioner, who was previously convicted of a sex
crime, was convicted after a jury trial in the Circuit Court of St. Clair
County, Alabama, on one count of violation of Alabama's Community
Notification Act, one count of failure to register as a sex offender with
the St. Clair County Sheriff, and one count of possession of a motor
vehicle with an obscured VIN number. [(Doc. 8-1)]. 1 He was
sentenced as a habitual felony offender on October 14, 2008, to
concurrent terms of 25 years in prison. He appealed, and the Alabama
Court of Criminal Appeals affirmed his conviction by unpublished
memorandum opinion dated July 31, 2009. He did not seek rehearing
and did not seek review in the Alabama Supreme Court. The
appellate court issued a certificate of judgment on August 19, 2009.
On July 29, 2010, petitioner filed a petition for post-conviction relief
pursuant to Alabama Rule of Criminal Procedure 32. (Doc. 8-6). The
trial court denied the petition on September 22, 2010, and he did not
appeal.

The magistrate judge pointed out that petitioner’s conviction became final on
August 19, 2009, as he was not entitled to additional time to seek review in the
There was a typographical error in the report and recommendation that referred to
“Doc. 801,” when it should have read “Doc. 8-1.”
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United States Supreme Court because he failed to seek review in the state court of
last resort, the Alabama Supreme Court. See Pugh v. Smith, 465 F.3d 1295, 1299
(11th Cir. 2006), Spencer v. Price, 2008 WL 2476764 (S.D. Ala. June 18, 2008).
He observed that when petitioner filed his first Rule 32 petition on July 29, 2010,
tolling the running of the one-year limitation at that time, there were only 21 days
remaining in the period.

The § 2244(d) limitation began running again on

September 23, 2010, after the state trial court denied the Rule 32 petition and
petitioner did not appeal from the denial. When the remaining 21 days expired, the
federal habeas petition became time-barred on October 13, 2010.
Petitioner’s objections argue that the magistrate judge erred by not giving
the petitioner the benefit of equitable tolling of the one-year limitation.

The

Supreme Court recognizes that the time limitation of § 2244(d) can be equitably
tolled.

The Court has explained: “We have previously made clear that a

‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649,
130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130 (2010), citing Pace [v. DiGuglielmo],
544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005); see also Cadet v.
Florida Dep't of Corr., 742 F.3d 473, 477 (11th Cir. 2014). As explained below,
there are at least three reasons why equitable tolling is not available to petitioner in
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this case.
First, petitioner did not raise or argue the question of equitable tolling before
the magistrate judge. The magistrate judge correctly pointed out that, despite
respondents’ explicit reliance on the time bar, petitioner did not attempt to argue
his illness (or anything else) as the basis for equitable tolling. The court declines
to address an argument not made to the magistrate judge. See Williams v. McNeil,
557 F.3d 1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline
to consider a party's argument when that argument was not first presented to the
magistrate judge.’).
Second, even if the court were to consider the petitioner’s equitable tolling
argument, it fails both requirements of the Holland test.

As to the first

requirement, Petitioner was not diligent in pursuing his claims, as indicated by
both his failure to seek certiorari review on direct appeal and his failure to appeal
the denial of his Rule 32 petition. Not only were these procedural defaults, which
of themselves bar consideration of the merits of the petition, they demonstrate a
lack of diligence during time periods for which petitioner offers no excuse. To be
diligent in pursuing his rights, Petitioner was required to follow through on the
opportunities presented to him for litigating these claims. He did not do so.
Third, although petitioner’s illness was an extraordinary circumstance
beyond his control, it did not prevent him from timely filing his habeas petition.
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According to the medical records submitted by petitioner as an exhibit to his
objections, he had a routine physical in April 2010, which uncovered an elevated
PSA (Prostate Specific Antigen), sometimes indicative of prostate cancer. On
October 25, 2010, petitioner underwent a prostate biopsy.

He developed an

infection from the biopsy that resulted in his being hospitalized on November 16,
2010, in grave condition with severe sepsis, shock, and acute renal failure. He
recovered with treatment and was returned to the infirmary at Limestone
Correctional Facility on November 24, 2010, where he remained for two more
weeks. In February 2011, petitioner had cryosurgery to remove the cancer from
his prostate.
It is obvious from this timeline that the one-year deadline for filing a habeas
petition expired before plaintiff suffered the sepsis and renal failure, which the
court agrees were clearly extraordinary circumstances beyond his control. But the
circumstances of his illness did not prevent him from filing a timely petition,
which should have been filed by no later than October 13, 2010. If petitioner was
going to file a timely habeas petition, he had to do so by October 13, a date well
before he even had the prostate biopsy on October 25, much less the date it
developed into a serious and debilitating infection on November 16, 2010. In
short, the infection—serious as it was—occurred after the time deadline for filing
his habeas expired and, therefore, did not “prevent[] timely filing” of the petition.
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Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d 130
(2010).
Because petitioner is not shown entitlement to equitable tolling of the time
period mandated by § 2244(d), the court will enter a separate order overruling his
objections and adopting and accepting the magistrate judge’s report and
recommendation. His petition will be dismissed as time-barred.
The Clerk is DIRECTED to mail a copy of the foregoing to the petitioner.
DONE and ORDERED on April 20, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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