Ford v. Morrison et al
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/15/16. (SAC )*Certificate of appealability DENIED within Memorandum Opinion.
2016 Mar-15 PM 02:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THADDEUS CORDELRO FORD,
CHIEF MORRISON and the
ATTORNEY GENERAL of the STATE )
Case No.: 5:12-cv-03916-WMA-SGC
This is an action on a petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by Thaddeus Cordelro Ford, a state prisoner proceeding pro se. (Doc.
1). The magistrate judge entered a report and recommendation on January 26, 2016,
recommending Ford’s § 2254 petition be denied as barred by the statute of limitations
provided by 28 U.S.C. § 2244(d)(1)(A) and procedurally defaulted. (Doc. 6).
Furthermore, in accordance with Rule 11 of the Rules Governing Section 2254 Cases,
the magistrate judge recommended a certificate of appealability be denied. (Id.). Ford
has filed objections to the magistrate judge’s report and recommendation. (Doc. 9).
For the reasons discussed below, those objections are due to be overruled.
As set out in the magistrate judge’s report and recommendation:
On November 14, 2007, Ford pleaded guilty to second degree assault
and first degree robbery. On that same day, the Circuit Court of
Madison County, Alabama sentenced Ford to a 10-year split sentence as
to the assault conviction, with three years to be served in the custody of
the Alabama Department of Corrections, followed by a period of
probation. Simultaneously, the state circuit court sentenced Ford to a
concurrent 20-year split sentence as to the robbery conviction, with 3
years to be served in the custody of the Alabama Department of
Corrections, followed by a period of probation. Ford did not appeal
either conviction directly. He did not challenge either conviction in
post-conviction proceedings, either.
Although it appears Ford completed the original custodial portions of
his sentences, the Madison County Circuit Court revoked the
probationary portions of those sentences on August 7, 2013. Ford filed
the instant § 2254 petition in this court on October 18, 2012. He alleges
his guilty plea was unlawfully induced or involuntary because he
believed he was accepting a 10-year split sentence, exclusively, and only
learned he received a 20-year split sentence, as well, when he was
released from incarceration after serving the original custodial portions
of his sentences. He also alleges his attorney rendered ineffective
assistance by failing to inform him he was accepting both a 10-year split
sentence and a 20-year split sentence.
(Doc. 6 at 1-2) (internal citations and footnote omitted).
The magistrate judge commenced the limitations period from § 2244(d)(1)(A),
the date on which Ford’s conviction became final by the conclusion of direct review
or the expiration of time to seek that review, rather than any of the other three
possibilities provided by § 2244(d), including § 2244(d)(1)(D), which provides for
commencement of the limitations period from the date on which the factual predicate
of a petitioner’s claim could have been discovered through the exercise of due
diligence. (Id. at 3-4). The magistrate judge specifically noted § 2244(d)(1)(D) did
not trigger the limitations period because while Ford alleges he did not learn of his
20-year split sentence until his release from incarceration after serving the original
custodial portions of his sentences, he alleges no facts that would indicate this
information could not have been known to him through the exercise of reasonable
diligence. (Id. at 3).
In his objections, Ford argues he had no reason to question or inquire as to his
sentences before the revocation of his probation because his attorney told him that he
was to serve only a 10-year split sentence and documentation he received while
incarcerated reflected the same. (Doc. 9). These bare allegations, unsupported by any
documentation or detail that might lend them credence, fail to demonstrate the
diligence necessary to warrant commencement of the limitations period from §
2244(d)(1)(D) rather than § 2244(d)(1)(A), justify equitable tolling of the limitations
period, or show cause sufficient to excuse procedural default. See Holland v. Florida,
560 U.S. 631, 649 (2010) (petitioner bears burden of showing he has been pursuing
his rights diligently and some extraordinary circumstance prevented his timely filing);
Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (petitioner must show cause and
prejudice to overcome procedural default of claim). This is particularly true given the
guilty pleas signed by Ford unequivocally state the district attorney would
recommend a 20-year split sentence in connection with the robbery charge, to be
served concurrently with a recommended 10-year split sentence in connection with
the assault charge. See State v. Ford, 47-CC-001578.00 at Doc. 8 at 5-6; State v.
Ford, 47-CC-2006-005867.00 at Doc. 10 at 4-5. For these reasons, Ford’s objections
to the magistrate judge’s report and recommendation are OVERRULED.
After careful consideration of the record in this case and the magistrate judge’s
report, the court ADOPTS that report and ACCEPTS the magistrate judge’s
recommendations. Accordingly, Ford’s § 2254 petition is due to be denied as timebarred and procedurally defaulted. Furthermore, for the reasons set forth in the report
and recommendation and pursuant to Rule 11 of the Rules Governing Section 2254
Cases, a certificate of appealability is DENIED.
A final judgment will be entered.
DONE this 15th day of March, 2016.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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