Gray v. Calloway et al (INMATE 3)

Filing 33

MEMORANDUM OPINION. Signed by Judge Annemarie Carney Axon on 5/22/2023. (KSS)

FILED
2023 May-22 PM 01:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
STEPHEN DEWAYNE GRAY
Petitioner,
v.
ROLANDA CALLOWAY, et al.,
Respondents.

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Case No. 5:22-cv-1048-ACA-GMB

MEMORANDUM OPINION
Stephen Dewayne Gray filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his October 9, 2013 convictions for
first-degree robbery and second-degree assault in Madison County, Alabama.
(Doc. 1). The magistrate judge entered a report recommending that the court deny
Mr. Gray’s petition as untimely, that statutory and equitable tolling do not apply,
and that Mr. Gray had not met the stringent standard to trigger the actual innocence
exception for review of an otherwise time-barred claim. (Doc. 22).
This matter is currently before the court for a review of Mr. Gray’s
objections to the report and recommendation. (Doc. 29). In his objections,
Mr. Gray appears to concede that his petition was untimely, but he argues the delay
was not his fault. (Id. at 5).
To the extent Mr. Gray challenges the magistrate judge’s finding that

statutory tolling does not apply, the court OVERRULES the objection.
The magistrate judge correctly found that Mr. Gray’s one-year period to file
a § 2254 petition began to run on February 21, 2015, one day after his deadline to
file a compliant petition for writ of certiorari in the Alabama Supreme Court. (Doc.
22 at 7–8). Mr. Gray contends that he was unaware his attorney filed a
noncompliant petition, but he has not explained how this changes the date on
which his conviction became final for purposes of the one-year statute of
limitations. (Doc. 29 at 6). Therefore, Mr. Gray had until February 22, 2016 to file
his § 2254 petition. (Doc. 22 at 8 & n.7).
Under § 2244(d)(2), the limitation period is tolled while “a properly filed
application for State post-conviction or other collateral review” of the underlying
judgment or claim remains pending. 28 U.S.C. § 2244(d)(2); Cramer v. Sec’y,
Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006). The magistrate judge
correctly found that Mr. Gray’s attempt to file a Rule 32 petition in Madison
County Circuit Court on January 29, 2016 did not statutorily toll the February 22,
2016 deadline because the court denied Mr. Gray’s motion to proceed in forma
pauperis, and he did not pay the filing fee. (Doc. 22 at 9).
But even if the court assumes that Mr. Gray’s attempt to file a Rule 32
petition on January 29, 2016 tolled the statute of limitations, the statute began to
run again on June 29, 2016, when the Alabama Court of Criminal Appeals
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dismissed Mr. Gray’s petition appealing the trial court’s denial of his in forma
pauperis motion. (Doc. 21-4). Thus, at the very latest, the one-year statute of
limitations expired sometime in July 2016. But Mr. Gray did not file his federal
habeas petition until four years later in August 2022. (Doc. 1). Accordingly, Mr.
Gray is not entitled to statutory tolling.
To the extent Mr. Gray argues that he is entitled to equitable tolling, the
court also OVERRULES that objection. The one-year statute of limitations period
may be equitably tolled if a petitioner can show “(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 (2010)
(uotation marks and citation omitted). But equitable tolling is applied sparingly,
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000), and “only in truly
extraordinary circumstances,” Johnson v. United States, 340 F.3d 1219, 1226 (11th
Cir. 2003).
As best the court can decipher, Mr. Gray argues that he is entitled to
equitable tolling because the Madison County Circuit Court denied his applications
to proceed in forma pauperis each time he attempted to file post-conviction
motions with the court. (Doc. 29 at 5). It is not the place of this court to secondguess or review a state court’s determination about application of state law to a
party’s indigency petition. But even if the court were to find that the Madison
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County Circuit Court wrongfully denied Mr. Gray’s motions to proceed in forma
pauperis, he has not shown that he diligently pursued his rights. During the oneyear limitations period, he filed one motion to proceed in forma pauperis and one
appeal of the denial of that motion, and nothing else. (Doc. 21-2; see doc. 21-4).
After the expiration of the period, he waited an additional three years before filing
another motion in state court. (See doc. 11-16). Mr. Gray suggests that equitable
tolling should apply because filed a petition in Barbour County Circuit Court in
December 2017. (Doc. 29 at 7). The only evidence that Mr. Gray filed such a
petition is his unsworn statement in his objections. But even assuming he did
actually file the petition, December 2019 is nearly eighteen months after the
limitations period expired.
Having reviewed Mr. Gray’s objections, the court ADOPTS the magistrate
judge’s report and ACCEPTS his recommendation. Consistent with that
recommendation, the court WILL DENY Mr. Gray’s § 2254 petition.
Rule 11 of the Rules Governing § 2254 Petitions requires the court to issue
or deny a certificate of appealability when the court enters an order adverse to the
petitioner. Rule 11(a), Rules Governing § 2254 Cases in the United States District
Courts. This court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make such a showing, a “petitioner must demonstrate that
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reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that
“the issues presented were adequate to deserve encouragement to proceed further,”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation marks omitted). The
court finds that Mr. Gray has not satisfied either standard. Accordingly, the court
WILL DENY a certificate of appealability.
The court will enter a separate final order consistent with this opinion.
DONE and ORDERED this May 22, 2023.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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