Anthony v. Gordy et al

Filing 16

MEMORANDUM OPINION AND ORDER After The court ADOPTS the report of the magistrate judge as modified within and ACCEPTS her recommendations. Petitioner's objections are OVERRULED. Petitioner's habeas claims are DISMISSED. Specifically, Petiti oner's § 2254 claims are DISMISSED as time-barred and unexhausted and Petitioner's § 2241 claims are (1) DENIED as MOOT to the extent they concern Petitioner's prolonged confinement in segregation;and (2) DENIED to the extent they concern ADOC's application of the "R" designation to Petitioner. The motion for release on bail pending habeas review is DENIED as MOOT. This matter is RECHARACTERIZED as invoking 42 U.S.C. § 1983. The Clerk is DIRECTED to amend the docket sheet to reflect this recharacterization. Signed by Chief Judge Karon O Bowdre on 2/28/17. (SAC ) *Memo Op & Order placed in first class mail to pro se Plaintiff.

FILED
2017 Feb-28 PM 02:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
VERTIS ANTHONY,
Petitioner,
v.
CHRISTOPHER GORDY,
Respondent.

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Case No.: 7:16-cv-00649-KOB-SGC

MEMORANDUM OPINION AND ORDER
Petitioner, Vertis Anthony, has filed an amended petition for writ of habeas corpus on the
form typically used to assert claims under 28 U.S.C. § 2241. (Doc. 3). On November 15, 2016, the
magistrate judge entered a report recommending Petitioner's habeas claims be dismissed or denied
as moot and further recommending that Petitioner's claims be recharacterized as arising under 42
U.S.C. § 1983. (Doc. 12). On November 29, 2016, the court received Petitioner's objections. (Doc.
13).1 For the reasons discussed below, the court will ADOPT the magistrate judge's report and
report as modified and ACCEPT her recommendations.
I.

DISCUSSION
The amended petition asserts claims under a number of different theories, including habeas

claims under 28 U.S.C. §§ 2241 and 2254, as well as civil claims under 42 U.S.C. § 1983.
Petitioner's claims are discussed in turn.

On December 19, 2016, the court received two motions filed by Petitioner: (1) a motion requesting
bond (Doc. 14); and (2) a motion requesting alternative sentencing via electronic monitoring (Doc.
15). In light of the conclusions reached in this Memorandum Opinion and Order, these motions are
DENIED.
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A.

§ 2241 Claims

The magistrate judge interpreted Petitioner's § 2241 claims as arising from (1) Petitioner's
prolonged segregation following a prison disciplinary proceeding; and (2) the Alabama Department
of Correction's application of the "R" designation to Petitioner. (Doc. 12 at 2-5). The report and
recommendation concluded that any § 2241 claim related to Petitioner's prolonged segregation was
made moot by Petitioner's return to general population. The magistrate judge concluded Petitioner's
claims related to the "R" designation were not recognized under § 2241 because prisoners do not
have a constitutionally protected interest in their classification status.
Petitioner's objections take issue with both conclusions concerning the § 2241 claims. (Doc.
13 at 3-6). Petitioner's objections regarding his prolonged segregation do not overcome the
conclusion that any § 2241 claim based on this ground was made moot by his release from
segregation. (See id. at 3-4).2 Likewise, Petitioner's objections regarding the "R" Designation do
not alter the conclusion that his ADOC classification status does not provide grounds for habeas
relief. (See Doc. 12 at 2-5).
Additionally, although not noted by the magistrate judge, the claims related to the "R"
designation also lack merit. Petitioner's principal objection is that the "R" designation prevents him
from earning "good time" credits to achieve an early release. (Doc. 13 at 4-5). Any such claim is
meritless under Alabama law, which provides that good time credits are not available to several
categories of inmates, including those who receive a sentence exceeding fifteen years. ALA. CODE
§ 14-9-41(e). Here, Petitioner was sentenced to thirty-five years for attempted murder. Alabama

While § 2241 no longer provides Petitioner with relief for his prolonged segregation, he can still
seek relief under § 1983.
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v. Anthony, No. 2010-85 (Bullock Cty. Cir. Ct. entered Dec. 8, 2011). Accordingly, regardless of
ADOC's classification of Petitioner, he is ineligible for good time credits under Alabama law.
For the foregoing reasons, the court will adopt and accept the magistrate judge's conclusions
regarding Petitioner's § 2241 claims, as modified above.
B.

§ 2254 Claims

The magistrate judge concluded that any § 2254 claims Petitioner might assert were barred
as successive under 28 U.S.C. § 2244(b)(3)(A). (Doc. 12 at 2). This conclusion was based on
Petitioner's previously filed § 2254 petition captioned as Anthony v. Attorney General, No. 2:15-cv0618-MHT-WC (M.D. Ala. filed Aug. 27, 2015). However, because that previously-filed habeas
petition remains pending in the Middle District of Alabama, the bar on second or successive § 2254
petitions appears to be inappropriate here. See Boyd v. United States, 754 F.3d 1298, 1302 (11th Cir.
2014) ("second or successive status only attaches to a judgment on the merits") (citing Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000) (emphasis added). Nonetheless, because any § 2254 claims
presented in the instant petition are time-barred and procedurally defaulted, the undersigned will
accept the magistrate judge's ultimate recommendation to dismiss any § 2254 claims, albeit on
different rationale.
Petitioner acknowledges he was convicted of attempted murder in the Bullock County Circuit
Court and sentenced to thirty-five years imprisonment on December 8, 2011. (See Doc. 3 at 1).
Review of the state court record reveals that, on direct appeal, the Court of Criminal Appeals
affirmed on September 21, 2012, and issued a certificate of judgment on November 21, 2012. See
Anthony v. State, No. CR-13-0698 (Ala. Ct. Crim. App. Mem. Op. entered March 6, 2015). On
September 11, 2013, Petitioner filed a petition pursuant to Rule 32 of the Alabama Rules of Criminal
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Procedure ("Rule 32 Petition"). The sentencing court denied the Rule 32 Petition on January 21,
2014, and the Court of Criminal Appeals affirmed on March 6, 2015. The Court of Criminal
Appeals issued a certificate of judgment on May 6, 2015. See (Doc. 3). The instant petition was
filed on April 22, 2016.3
A federal district court is authorized to entertain an application for writ of habeas corpus filed
by a person in custody pursuant to the judgment of a state court where the petitioner alleges he is in
custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a).
Regarding the statute of limitations applicable to a petition for writ of habeas corpus, Congress has
provided:
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 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 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 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.

The original petition is a nearly blank, unsigned, undated, hand-written copy of a form used to
assert claims under § 2254. (Doc. 1). Because the initial filing was undated, the undersigned will
construe the petition as being filed on the date it was received by the Clerk, the only date available.
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28 U.S.C. § 2244(d)(1). Where a defendant appeals his conviction to the Alabama Court of Criminal
Appeals but does not seek certiorari review in the Alabama Supreme Court, his conviction becomes
“final” for purposes of § 2244(d)(1)(A) no later than the date on which the Alabama Court of
Criminal Appeals issues its certificate of judgment. See Cox v. Ferrell, 262 F. App’x 147, 148 (11th
Cir. 2008); Brown v. Hooks, 176 F. App’x 949, 951 (11th Cir. 2006); Williams v. Allen, 2010 WL
5477762, *4 n.7 (S.D. Ala. Nov. 30, 2010); see also Pugh v. Smith, 465 F.3d 1295, 1299-1300 (11th
Cir. 2006).
Once the federal statute of limitations is triggered and begins to run, it can be tolled in two
ways: through statutory tolling or equitable tolling. Brown v. Barrow, 512 F.3d 1304, 1307 (11th
Cir. 2008). Statutory tolling arises from 28 U.S.C. § 2244(d)(2), which tolls the one-year limitation
period during the pendency of “a properly filed application for State post-conviction or other
collateral review” of the underlying judgment. See also McCloud v. Hooks, 560 F.3d 1223, 1227
(11th Cir. 2009). “However, the pendency of properly filed state post-conviction proceedings only
pauses § 2244(d)(1)’s one-year clock; it does not reset it.” Roby v. Mitchem, No. 11-2197, 2012 WL
1745529 at * 3 (N.D. Ala. May 1, 2012) (citing Trapp v. Spencer, 479 F.3d 53, 58-59 (1st Cir.
2007); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003); Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000)); see McCloud, 560 F.3d at 1227. Additionally, federal habeas petitions do not trigger
any tolling of the time limit under § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 173-74 (2001).
Equitable tolling is available only where a petitioner “shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented

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timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (citation and internal quotation marks
omitted). The Eleventh Circuit has explained:
Because equitable tolling is “an extraordinary remedy,” it “is limited to rare and
exceptional circumstances” and “typically applied sparingly.” Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005), aff’d, 549 U.S. 327 (2007). Thus, we have
concluded that equitable tolling is available only “‘when a movant untimely files
because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.’” Id. (quoting Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999)). The petitioner bears the burden of showing that
equitable tolling is warranted. See Drew v. Dep’t of Corr., 297 F.3d 1278, 1286
(11th Cir. 2002).
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009); see also Pace v. DeGuglielmo, 544 U.S.
408, 418 (2005).
In addition to the time limitations discussed above, a state prisoner is generally ineligible for
federal habeas relief unless he has first exhausted the remedies available in the state courts. See 28
U.S.C. § 2254(b)(1)(A); Kelley v. Secretary for Dept. of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004). A state prisoner must first present any federal constitutional or statutory claim through one
complete round of the state’s trial and appellate review process, either on direct appeal or in state
post-conviction proceedings. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Mauk v. Lanier, 484
F.3d 1352, 1357 (11th Cir. 2007). Thus, an Alabama state prisoner must attempt to present his
claims to the Alabama Supreme Court. Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003); Smith
v. Jones, 256 F.3d 1135, 1140-41 (11th Cir. 2001). Where a claim has not been exhausted in the
state courts and the time in which to present the claim there has expired, the claim is deemed
procedurally defaulted, and review in the federal courts of that claim is generally precluded. See
Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); McNair v. Campbell, 416 F.3d 1291, 1305
(11th Cir. 2005).
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Applying this law to the facts presented here, it appears any § 2254 claims asserted in the
instant petition are both time-barred and procedurally defaulted. Regarding timeliness, the §
2244(d)(1)(A) limitation period began to run on November 21, 2012, when Petitioner's conviction
became final by virtue of the Court of Criminal Appeals' issuance of a certificate of judgment on
Petitioner's direct appeal. The limitation period ran for 294 days until September 11, 2013, when
it was statutorily tolled under § 2244(d)(2) by Petitioner's Rule 32 Petition. The limitation period
began to run again on May 6, 2015, when the Court of Criminal Appeals issued a certificate of
judgment on the Rule 32 Petition. The limitation period expired seventy-one days later on July 16,
2015. Petitioner alleges no facts that would entitle him to equitable tolling. Accordingly, because
Petitioner did not file the instant petition until more than nine months after the limitation period ran,
it appears from the face of the petition that any claims under § 2254 are time-barred.
Additionally, Petitioner never presented any of these claims to the Alabama Supreme Court,
either on direct appeal or via the Rule 32 Petition. Accordingly, his federal habeas claims are
unexhausted. Further, any attempt to exhaust state remedies now would be futile. See ALA. R.
CRIM. PRO. 32(a)(4), (b)-(c). The petition alleges no facts that would excuse this procedural default.
Accordingly, the face of the petition shows that any claims under § 2254 are procedurally defaulted.
For the foregoing reasons the magistrate judge's report and recommendation will be adopted
and accepted as modified above.
C.

§ 1983 Claims

The amended petition explicitly invokes 42 U.S.C. § 1983 and demands monetary damages.
The report and recommendation concluded that any surviving claims should be recharacterized as
arising under § 1983 and handled accordingly. Petitioner has not specifically objected to this
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conclusion, and because none of Petitioner's habeas claims will survive, it appears appropriate to
proceed with Petitioner's § 1983 claims. Accordingly, the court will adopt and accept the report and
recommendation regarding Petitioner's § 1983 claims.
II.

CONCLUSION
After careful consideration of the record in this case, the report and recommendation, and

Petitioner's objections, the court hereby ADOPTS the report of the magistrate judge as modified
above and ACCEPTS her recommendations. Petitioner's objections (Doc. 13) are OVERRULED.
Accordingly, Petitioner's habeas claims are DISMISSED. Specifically, Petitioner's § 2254
claims are DISMISSED as time-barred and unexhausted and Petitioner's § 2241 claims are (1)
DENIED as MOOT to the extent they concern Petitioner's prolonged confinement in segregation;
and (2) DENIED to the extent they concern ADOC's application of the "R" designation to Petitioner.
Accordingly, the motion (Doc. 10) for release on bail pending habeas review is DENIED as MOOT.
This matter is RECHARACTERIZED as invoking 42 U.S.C. § 1983. The Clerk is DIRECTED
to amend the docket sheet to reflect this recharacterization.
DONE and ORDERED this 28th day of February, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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