Anderson v. Mitchem et al

Filing 8

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 12/12/2012. (KAM, )

FILED
2012 Dec-12 AM 11:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CURTIS R. ANDERSON,
Petitioner,
v.
WARDEN BILLY MITCHEM and the
ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents.

)
)
)
)
)
)
)
)
)
)
)

Civil Action Number:
5:12-cv-0648-SLB-JEO

MEMORANDUM OPINION
This is a habeas action filed pursuant to 28 U.S.C. § 2254 by Curtis R. Anderson, an
Alabama state prisoner acting pro se. The magistrate judge has entered a report that recommends
that Anderson's § 2254 petition is due to be denied because it is barred by the applicable one-year
statute of limitations, 28 U.S.C. § 2244(d). (Doc. 6). Anderson has now filed an objection to that
report and recommendation. (Doc. 7).
In his objection, Anderson asserts that the magistrate judge has miscalculated the limitations
period, but he fails to provide any specifics explaining how that is supposedly so. (Doc. 7, ¶ 7).
Anderson also argues that he may overcome the limitations period based upon equitable tolling. (Id.,
¶ 8). See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). In support, he highlights that he is pro
se, that he is untrained in the law, and that he has only “very limited access to an in adequate (sic)
law library.” (Doc. 7, ¶¶ 4, 6). Such are not extraordinary circumstances sufficient to warrant
equitable tolling of the limitations period. See Miller v. Florida, 307 Fed. Appx. 366, 368 (11th Cir.

Jan. 13, 2009); Brown v. United States, 318 Fed. Appx. 749, 750 (11th Cir. Nov. 20, 2008); Rich v.
Department of Corr., 317 Fed. Appx. 881, 883 (11th Cir. Sept. 12, 2008); cf. Johnson v. United
States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted pro se representation alone or
procedural ignorance as an excuse for prolonged inattention when a statute’s clear policy calls for
promptness .

. . .).

Finally, Anderson claims that he might escape the limitations period based upon a showing
of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995). However, while Anderson
“vehemently denies [ ] that he intentionally murdered the victim as charged in the indictment,” he
does not deny “being responsible for the death of the victim.” (Doc. 7, ¶ 7). Anderson’s mere
denial that he “intentionally” killed the victim is insufficient to show that he is actually innocent of
the murder charge to which he pled guilty. Moreover, the actual innocence gateway to review of
otherwise time-barred claims is not open to petitioners “who did the killing and whose claim of
actual innocence is premised on being guilty of only a lesser degree of homicide.” Rozzelle v.
Secretary, Fla. Dep’t of Corrections, 672 F.3d 1000, 1015 (11th Cir. 2012) (per curiam).
Anderson’s claim of actual innocence fails, and his attempts to evade the statute of limitations are
unavailing.
Having carefully reviewed and considered de novo all the materials in the court file, including
the findings and recommendation and the objections filed by the petitioner, the court is of the
opinion that the magistrate judge’s findings are due to be and are hereby ADOPTED and his
recommendation is ACCEPTED. Anderson’s objection is hereby are OVERRULED. As a result,
Anderson’s § 2254 petition for federal habeas relief is due to be DISMISSED WITH PREJUDICE
as untimely under § 2244(d)(1). A separate final judgment will be entered.
2

DONE, this 11th day of December 2012.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

3