McCall v. Mitchem

Filing 22

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Leon McCall, recommending the petition be dismissed as time barred. The 6 MOTION for 1 Petiton for Writ of Habeas Corpus filed by person in state custody to be held in abeyance filed by Leon McCall is denied in light of the R&R. Objections to R&R due by 4/23/2012. Signed by Magistrate Judge William E. Cassady on 3/30/12. (copy mailed to petitioner) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

LEON McCALL, AIS 229186,
Petitioner,

:
:

vs.

:

BILLY MITCHEM,

CA 11-0507-KD-C

:

Respondent.
REPORT AND RECOMMENDATION
Leon McCall, a state prisoner presently in the custody of the respondent, has
petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This
matter has been referred to the undersigned for the entry of a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is
recommended that the instant petition be dismissed as time barred under the AntiTerrorism and Effective Death Penalty Act’s one-year limitations provision contained in
28 U.S.C. § 2244(d).1

In light of the contents of this report and recommendation, the undersigned
DENIES McCall’s motion to hold his petition in abeyance (Doc. 6) pending his exhaustion of
two claims asserted in the federal petition that he has presented to the states courts of Alabama
via his fourth Rule 32 petition.
1

1

BACKGROUND
On May 19, 2003, McCall entered a “best interest” counseled guilty plea to
intentional murder. (Compare Doc. 1, at 2 with Doc. 13, Exhibit 1, Guilty Plea Transcript,
at 20 and Doc. 13, Exhibit 4, at 1 n.1.) That same day, petitioner was sentenced to life
imprisonment. (Doc. 13, Exhibit 1, Guilty Plea Tr. at 34.)
Petitioner filed written notice of appeal on June 23, 2003. (See Doc. 13, Exhibit 1,
Notice of Appeal.)2 The Alabama Court of Criminal Appeals affirmed petitioner’s
conviction and sentence by memorandum opinion entered on January 16, 2004. McCall
v. State, 910 So.2d 833 (Ala.Crim.App. Jan. 16, 2004) (table).
Pursuant to a negotiated plea agreement, the appellant, Leon
McCall, was convicted of one count of intentional murder,3 a violation of
§ 13A-6-2, Ala. Code 1975, and was sentenced to life imprisonment.
McCall was also ordered to pay all statutorily mandated fines and
assessments, court costs, and restitution in the amount of $4809.
The record reveals that on May 19, 2003, McCall withdrew his not
guilty plea, and entered a “best interest” plea to murder. During a lengthy
plea colloquy, McCall stated that he understood his rights, that he
understood the charge against him, and that he understood the minimum
and maximum sentence that could be imposed upon conviction. McCall
2

Counsel was appointed to represent McCall on direct appeal. (See Doc. 13,

Exhibit 2.)
“McCall was indicted for capital murder, pursuant to § 13A-5-40(a)(17), Ala.
Code 1975, for the fatal shooting of his wife, Janice Eloise McCall, while she occupied a vehicle.
He entered a ‘best interest’ plea, in accordance with North Carolina v. Alford, 400 U.S. 25 (1970),
to the lesser-included offense of murder. []” (Doc. 13, Exhibit 4, at 1 n.1.)
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2

acknowledged that by pleading guilty to the lesser offense of murder, he
would not face the death penalty, but would, instead, be sentenced to a
term of imprisonment of not less than 10 years nor more than life
imprisonment. McCall also acknowledged the amount of the various fines
and other costs that were to be imposed against him following entry of his
plea. Finally, McCall stated that he had discussed all of the
aforementioned matters with his attorneys.
McCall also executed an “Explanation of Rights and Plea of Guilty”
form, which reflected the nature of the guilty plea and the appellant’s
understanding of his constitutional rights. The form apprised McCall of
the correct sentencing range for a Class A felony. The court proceeded to
read into the record a factual basis for McCall’s plea, as supplied to him
by defense counsel. The court then asked McCall if he believed that the
State would be able to prove those facts at trial and that he would be
convicted, McCall replied “I don’t know. I just pled guilty.” The court
then asked McCall if he was pleading guilty because he felt that it would
be in his best interest to do so, to which McCall replied “Yes, sir.” The
court then accepted McCall’s plea and sentenced him, in accordance with
the plea agreement, to life imprisonment.
On June 18, 2003, McCall filed a timely pro se motion to withdraw
his best-interest guilty plea. McCall’s motion alleged that he had not been
correctly advised of the minimum and maximum punishment he faced
upon pleading guilty; he also alleged that he believed that he would
receive a 25-year sentence if he pleaded guilty. The trial court denied his
motion on June 26, 2003, on the basis of the signed plea agreement, which
clearly provided for a life sentence. This appeal followed.
I.
McCall challenges the issue of his competency to knowingly and
voluntarily enter a best interest plea. The record reveals that on April 3,
2003, counsel filed a motion for a court-ordered mental evaluation.
Following a hearing on all pre-trial motions, the trial court denied
McCall’s motion for a mental evaluation on April 30, 2003. McCall
specifically intimates in his brief that he should have been allowed to
withdraw his guilty plea because there was no proof that he was
competent to enter the plea.
3

This claim is raised for the first time on appeal. Nevertheless,
because this is a claim affecting McCall’s competency to plead guilty to
murder, the merits of this claim will be addressed. It is well-settled that a
trial court has an independent duty to inquire into an accused’s state of
mind when there are reasonable grounds to doubt the accused’s
competency to stand trial.
A defendant does not have a right to a mental examination
whenever he requests one, and, absent such a right, the trial court is the
screening agent of such requests. It is left to the discretion of the circuit
court as to whether there is reasonable doubt as to sanity and, thus,
whether a further examination is required.
In the absence of any evidence, the mere allegations
by counsel that the defendant is incompetent to stand trial
do not establish reasonable grounds to doubt the
defendant’s sanity and warrant an inquiry into his
competency.
Contrary to McCall’s contention, there was no basis for the trial
court to inquire further into McCall’s competency to stand trial. The
motion for a court-ordered mental evaluation filed by McCall’s counsel on
April 3, 2003, appears to be a pre-printed form containing general
allegations that track the language of Rule 11, Ala.R.Crim.P. No specific
allegations concerning McCall’s competency were added to the motion.
Given that at the time the motion was filed, McCall was under indictment
for capital murder, counsel filed the request for a mental evaluation out of
an abundance of caution, rather than because counsel had any specific
basis to doubt McCall’s competency. Moreover, following the court’s
April 30, 2003, hearing on all pre-trial motions—including the motion for
mental evaluation—the trial court denied McCall’s request, thus finding
no basis for further inquiry into McCall’s competency to stand trial.
Moreover, at the time McCall entered his plea, the trial court found that he
had knowingly and intelligently waived his constitutional rights. There is
nothing in the record to support McCall’s allegation that he was
incompetent when he entered a best-interest plea to the intentional
murder of his wife, Janice Eloise McCall. Accordingly, no basis for
reversal exists as to this issue.
4

II.
McCall also contends that his plea was involuntary because his
attorney had represented to him that the State had offered a sentence of 25
years, and “at no time did Petitioner reject the 25-year offer.” Thus,
McCall contends, based on counsel’s misrepresentation, he should have
been allowed to withdraw his best-interest plea, given that he had nothing
to lose by going to trial.4
The record contains a full transcript of the plea colloquy, during
which McCall stated that he understood his rights, that he understood the
charges contained in the indictment, and that he understood the minimum
and maximum sentence that could be imposed upon conviction for capital
murder and the lesser-included offense of intentional murder to which he
was entering a plea.5 McCall stated that he signed the plea agreement
voluntarily and defense counsel stated that he had read the plea
agreement with his client. McCall further stated that the sentence handed
down from the court was what he agreed to in his plea agreement and
that he did not wish to appeal.
The record also contains a signed copy of the plea agreement and
an “Explanation of Rights and Plea of Guilty” form,6 which placed McCall
on notice of the correct sentencing range he faced for the charge to which
he was pleading guilty. At no time did McCall raise the issue of a 25 year
sentence. The trial court, in its discretion, determined that the guilty plea
was knowingly and voluntarily entered.
While a misrepresentation by [] defense counsel as to the
punishment to be imposed or the length of sentence may be a ground for
“Given that McCall faced the possibility of a death sentence if he proceeded to
trial on the capital-murder charge, we find this comment to be somewhat disingenuous.” (Doc.
13, Exhibit 4, at 4 n.2.)
4

“We note that the trial court correctly advised McCall of the range of punishment
for murder.” (Doc. 13, Exhibit 4, at 5 n.3.)
5

“This form is also known as an Ireland form.” (Doc. 13, Exhibit 4, at 5 n.4
(citation omitted).)
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5

withdrawing a guilty plea, a defendant’s mere subjective belief or
expectation as to his sentence, when it is unsupported by any promise
form the State or indications by the court, is insufficient to set aside a
guilty plea as unknowing or involuntary. Once the trial court has properly
accepted a defendant’s guilty plea, the court has sole discretion in
determining whether the defendant should be allowed to withdraw that
plea, and the trial court’s decision will not be disturbed on appeal absent a
showing of abuse of discretion. The court shall allow withdrawal of a plea
of guilty when necessary to correct a manifest injustice. Rule 14.4(a)(1),
Ala.R.Crim.P., requires the trial court, before accepting a guilty plea, to
ascertain that the defendant has a full understanding of what a plea of
guilty means and its consequences, by informing the defendant of and
determining that the defendant understands the numerous rights
specified in Rule 14.4(a)(1). Subsection (a)(1) requires a full colloquy to
ensure that the defendant understands the meaning of the guilty plea and
its consequences as required by Boykin v. Alabama, 395 U.S. 238 (1969).
Rule 14.4(a)(2) requires the trial court to determine that the plea is
voluntary and not the result of force, threats, or coercion, nor any promise
apart from the plea agreement that has been disclosed to the court as
provided in Rule 14.3(b). Rule 14.4(d) provides that the trial court may
comply with the requirements of Rule 14.4(a) by determining from a
personal colloquy with the defendant that the defendant has read or has
had read to him and understands each item contained in the “Explanation
of Rights and Plea of Guilty” form. Although the record must
affirmatively show the colloquy between the trial court and the defendant
in which the defendant is shown to have a full understanding of the
meaning of a guilty plea and its consequences, this colloquy may be
supplemented by a validly executed Ireland form if the trial court
ascertains, on the record, that the accused had read and understands the
rights enumerated in that form.
In the instant case, the trial court did not abuse its discretion in
denying McCall’s motion to withdraw his plea. The record before us
contains the “Ireland” form which was signed by the appellant, his trial
counsel, and the trial judge, and which encompassed the rights set out in
Rule 14.4(a)(1). The form contains the following waiver signed by the
appellant:
I certify to the court that my attorney has read and
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explained the matters set forth above; that my rights have
been discussed with me in detail and fully explained; that I
understand the charge or charges against me; that I
understand my rights, the punishment or punishments
provided by law as they may apply to my case and I
understand the consequences of pleading guilty; that I am
not under the influence of any drugs, medicines, or alcoholic
beverages; and I have not been threatened or abused or
offered any inducement, reward, or hope of reward to plead
guilty other than the terms of the plea agreement which will
be stated on the record.
I further state to the court that I am guilty of the
charge to which I am entering a plea of guilty, that I desire to
plead guilty, that I made up my own mind to plead guilty,
and that I knowingly, intelligently, and voluntarily waive
my right to a trial in this case. I further state to the court that
I am satisfied with my attorney’s services and his handling
of my case.
The record also contains a complete transcript of the plea colloquy
wherein the trial court ascertained that McCall fully understood his
waiver of rights and the consequences of his plea. Therefore, the trial court
properly denied McCall’s motion to withdraw his plea; his claim to the
contrary is without merit.
III.
McCall next argues that the trial court had no factual basis to
support his plea, because he “was not in agreement that the State could
prove” the evidence averred in the factual basis for the plea supplied to
the court. We note that although McCall filed a motion to withdraw his
guilty plea, the only ground contained in the motion was that his counsel
had advised him that the plea agreement provided for a 25-year
sentence—as opposed to the life sentence he received—and thus, he had
been incorrectly advised of the minimum and maximum range of
sentence.
McCall’s claim that an insufficient factual basis existed for entry of
7

the plea was not presented to the trial court in any manner. Accordingly,
it is not properly before this Court for review. It has long been the holding
of this Court that only those specific claims presented to the trial court are
properly raised for review on appeal. Because McCall raises this allegation
for the first time on appeal, he is not entitled to any relief.
In any event, we note that, contrary to McCall’s claim, the record[]
reveals an adequate factual basis existed for his plea. Thus, no basis for
reversal exists as to this issue.
IV.
McCall also alleges that he received ineffective assistance of counsel
because: (1) there was no factual basis to support his plea; (2) he followed
counsel’s advice and entered his plea because he was afraid of spending
the rest of his life in prison; (3) he “risked nothing in going to trial”; and
(4) he relied on trial counsel’s representation that the State had offered a
25-year sentence, as opposed to the life sentence he received. McCall
further claims that had he gone to trial the jury might have found him
guilty of manslaughter, based on the evidence that the shots that resulted
in the death of the victim were accidental.7
A motion to withdraw a guilty plea is the functional equivalent of a
motion for new trial. An ineffective assistance of counsel claim must be
presented in a timely filed new trial motion . . . in order for that claim to
be properly preserved for review on direct appeal. Thus, the question of
whether McCall was denied the effective assistance of trial counsel is not
preserved for this Court’s review.
Based on the foregoing, the judgment of the trial court is affirmed.
“We note that there is nothing in the record that would support McCall’s
contention that the death of the victim might have been ‘accidental,’ entitling him to a possible
defense on that basis. This Court is bound by the record and cannot consider statements in the
appellant’s brief not supported by the record.” (Doc. 13, Exhibit 4, at 8 n.5.) More specifically,
the undersigned would note the record evidence that the victim died as a result of two shotgun
wounds to her head (Doc. 13, Exhibit 1, Guilty Plea Tr. at 18) undermines McCall’s postconviction position that the shooting of his wife was accidental.
7

8

(Doc. 13, Exhibit 4, at 1-8 (internal citations, brackets, and most quotation marks
omitted).) Because petitioner did not take any further action with respect to his direct
appeal, a certificate of final judgment of affirmance was issued by the Alabama Court of
Criminal Appeals on February 4, 2004. (Doc. 13, Exhibit 5.)8
McCall filed a Rule 32 petition seeking collateral relief in the Circuit Court of
Monroe County, Alabama on September 15, 2004. (See Doc. 13, Exhibit 6, Rule 32
Petition (reflecting that McCall signed the petition on September 15, 2004).) The trial
court summarily denied the petition on October 6, 2004. (Doc. 13, Exhibit 6, DENIAL OF
RULE 32 PETITION.)
Petitioner’s asserts three claims. No claim asserted by the petitioner
requires an evidentiary hearing. The undersigned presided over the plea
made by the petitioner.
The first claim is that the trial judge abused his discretion by not
allowing the petitioner to withdraw his plea of guilty and not granting a
motion for new trial. Petitioner filed a motion to withdraw his plea, it was
denied. Petitioner appealed to the Alabama Court of Criminal Appeals
which affirmed his conviction and specifically addressed this issue and
the underlying issue of the denial of the motion for a mental status
examination. No application for a writ of certiorari was made. This
ground has no merit and is denied as being precluded.
The second claim is that the petitioner was denied his right to the
There is no record support for McCall’s conclusory allegation in his federal
habeas petition that he filed a petition for rehearing and/or a petition for writ of certiorari. (See
Doc. 1, at 3.) Indeed, in summarily dismissing McCall’s first Rule 32 petition, the trial court
noted that “[n]o application for a writ of certiorari was made.” (Doc. 13, Exhibit 6, DENIAL OF
RULE 32 PETITION.)
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effective assistance of counsel. The allegation is that counsel was
ineffective because McCall made a best interest plea. This matter was
appealed and this issue could have been raised on that appeal. The Court
of Criminal Appeals found that an adequate factual basis for the plea was
made during the colloquy. This claim is precluded.
The third claim is that the indictment was defective. It was not. This
claim is denied.
(Id.) McCall filed written notice of appeal on November 4, 2004. (Doc. 13, Exhibit 6,
NOTICE OF APPEAL.)
On February 18, 2005, the Alabama Court of Criminal Appeals affirmed the trial
court’s summary denial of McCall’s Rule 32 petition by memorandum opinion. McCall
v. State, 925 So.2d 1018 (Ala.Crim.App. Feb. 18, 2005) (table).
McCall filed the present petition on September 22, 2004. In his
petition, McCall alleged (1) that the trial court committed reversible error
in denying him the right to withdraw his best interest guilty plea and
proceed to trial on the indictment; (2) that his trial counsel was
ineffective—he argued that he was following his trial counsel’s advice
when he agreed to enter a guilty plea to the lesser-included offense of
murder because he did not want to chance spending the rest of his life in
prison without the possibility of parole and he relied on his attorney’s
representation that the State had offered a 25-year sentence and that if he
had proceeded to trial, the jury most probably would have found him
guilty of manslaughter based on his statement that he and his wife had
struggled over the gun and the shots were fired accidently; and (3) that
the indictment was defective because, he said, it is vague, ambiguous and
indefinite, and it did not charge an offense or allege an essential element
of the charged offense. Without awaiting a response from the State, the
circuit court issued an order summarily denying McCall’s Rule 32
petition.
Claim (1), as set out above, is precluded by Rule 32.2(a)(4),
Ala.R.Crim.P., because the argument raised in Claim (1) is exactly the
10

same argument raised and addressed on direct appeal.
As for Claim (2), specifically, McCall contended:
From the sentencing colloquy, it is apparent that there was
no factual basis for the plea and Mr. McCall was following
his attorney’s advice when he agreed to accept the plea
because he was afraid of spending the rest of his life in
prison without the possibility of ever being paroled. McCall
admitted to no wrongdoing at his sentencing and based
upon the trial court’s statements that all he could have
received was a life sentence, he risked nothing in going to
trial. In his motion to withdraw the best interest plea, Mr.
McCall stated that his attorney told him the District
Attorney had offered twenty-five years not life. He states his
attorney made this representation to him and he relied upon
it.
Had Mr. McCall gone to trial and had the opportunity
to present his case to a jury, the outcome probably would
have been different. The jury would have most probably
found him guilty of manslaughter if they believed his
statement that he and his wife had struggled over the gun
and the shots fired were accidental.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the United
States Supreme Court articulated two criteria that must be satisfied to
show ineffective assistance of counsel. A defendant has the burden to
show (1) that his counsel’s performance was deficient and (2) that the
deficient performance actually prejudiced the defense. To prove prejudice,
the defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Furthermore, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
We have reviewed the record from McCall’s direct appeal[],
including a transcript of the guilty-plea proceedings, and we conclude
11

that McCall’s allegations of ineffective assistance of trial counsel are
without merit. First, we note that an adequate factual basis existed for
McCall’s guilty plea. We also note that during the guilty-plea proceedings,
the trial court discussed the plea agreement with McCall—the plea
agreement stated that the State would recommend that McCall be given a
life sentence—and ascertained that McCall understood the terms of the
plea agreement and that he had signed it. There was no mention during
the guilty-plea proceedings that McCall’s trial counsel had represented to
McCall that the State had offered to recommend a 25-year sentence rather
than a life sentence. In fact, during the guilty-plea proceedings, the trial
court asked McCall “Has anybody promised you anything except what’s
in the Plea Agreement in order to get you to plead guilty?” and McCall
replied, “No, sir.” Additionally, we note that McCall indicated to the trial
court that he was pleading guilty “because in accepting this sentence for
life instead of life without parole . . . under these facts [he felt] like it
would be the best thing for [him] to do.”
Although McCall alleged that “based upon the trial court’s
statements that all he could have received was a life sentence, he risked
nothing in going to trial”[], our review of the direct appeal record
demonstrates that this statement is incorrect. Prior to accepting McCall’s
guilty plea, the trial court heard from members of the victim’s family, who
opposed the State’s allowing McCall to enter a guilty plea and receive a
life sentence (and thereby possibly be eligible for parole one day). During
the trial court’s discussion with these family members, the trial court
stated, “For what it’s worth, if this crime had not occurred within an
automobile . . . he would have received exactly the same sentence.”
However, this crime did occur within an automobile; thus, McCall was
properly charged with capital murder under § 13A-5-40(a)(17). If he had
proceeded to trial on the capital-murder charge and had been convicted of
that charge, he would have been sentenced to life imprisonment without
the possibility of parole. Thus, it is clear that McCall decided to enter a
best-interest plea in order to receive the life sentence instead of risking a
capital-murder conviction which would have carried a sentence of life
imprisonment without the possibility of parole. Therefore, McCall is not
entitled to any relief on his ineffective-assistance-of-trial-counsel claim.
As for Claim ([3]), McCall maintains that his indictment was vague,
ambiguous and indefinite and that it did not charge an offense or allege
12

an essential element of the charged offense. The indictment stated that
McCall
did intentionally cause the death of another person, to-wit:
Janice [Eloise] McCall, by or through the use of a deadly
weapon, to-wit: shooting her with a pistol, while the said
Janice [Eloise] McCall was inside a vehicle, in violation of
13A-5-40(a)(17) of the Code of Alabama.
Rule 13.2(a), Ala.R.Crim.P., provides that an indictment shall be a
plain, concise statement of the charge in ordinary language sufficiently
definite to inform a defendant of common understanding of the offense
charged and with that degree of certainty which will enable the court,
upon conviction, to pronounce the proper judgment. In Alabama, an
indictment is sufficient if it substantially follows the language of the
statute violated, provided the statute prescribes with definiteness the
elements of the offense.
Section 13A-6-2(a)(1), Ala. Code 1975, states that “[a] person
commits the crime of murder if . . . [w]ith intent to cause the death of
another person, he causes the death of that person or of another person.”
Section 13A-5-40(a)(17), Ala. Code 1975, states that murder committed by
or through the use of a deadly weapon while the victim is in a vehicle is a
capital offense. McCall’s indictment tracked the language of the relevant
statutes. Thus, McCall’s claim that the indictment in this case was
defective is meritless.
McCall contends that the circuit court erred in summarily denying
his Rule 32 petition. However, Rule 32.7(d), Ala.R.Crim.P., provides:
Summary Disposition. If the court determines that
the petition is not sufficiently specific, or is precluded, or
fails to state a claim, or that no material issue of fact or law
exists which would entitle the petitioner to relief under this
rule and that no purpose would be served by any further
proceedings, the court may . . . dismiss the petition.
All the claims in McCall’s Rule 32 petition were either precluded or
meritless. Thus, the circuit court properly denied the petition without
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further proceedings. The circuit court’s summary denial of McCall’s Rule
32 petition is affirmed.
(Doc. 13, Exhibit 9, at 2-6 (most internal citations, quotation marks and brackets omitted;
footnote omitted).) McCall’s application for rehearing was overruled by the Alabama
Court of Criminal Appeals on March 25, 2005 (Doc. 13, Exhibit 10) and his petition for
writ of certiorari was denied by the Alabama Supreme Court on July 8, 2005, Ex parte
McCall, 946 So.2d 543 (Ala. July 8, 2005) (table). A certificate of final judgment was
issued by the Alabama Court of Criminal Appeals on July 11, 2005. (Doc. 13, Exhibit 13.)
McCall filed a second Rule 32 petition in the Circuit Court of Monroe County,
Alabama on January 30, 2006. (Compare Doc. 1, at 4 with Doc. 13, Exhibit 14, at 2.) The
trial court denied the petition following an evidentiary hearing. (Id.) The Alabama
Court of Criminal Appeals affirmed the trial court’s denial of the petition by
memorandum opinion entered on December 19, 2008. McCall v. State, 33 So.3d 650
(Ala.Crim.App. Dec. 19, 2008) (table).
The [trial] court found that McCall’s sole claim, that the indictment was
amended without his consent, was without merit according to the official
transcript. The court also found that the claim was precluded because the
validity of the indictment had been adjudicated on appeal, in McCall’s
first Rule 32 petition and on appeal from the denial of the first petition.
I.
McCall contends that the trial court violated § 15-8-90, Ala. Code
1975, by amending the indictment to change the name of the victim, his
wife, from “Janice Delouis McCall” to “Janice Elouise Martin,” in order to
correct the spelling of “Elouise” and to reflect her maiden name. He
14

argues that he did not consent to the change, that his counsel was not
authorized to make this decision for him and that he did not fully
understand his rights.
The trial court properly denied McCall’s claim as precluded
because McCall had challenged the indictment in prior proceedings as
insufficiently specific and as lacking an essential element. His present
petition was successive [], pursuant to Rule 32.2(b), Ala.R.Crim.P., and it
raised the same or a similar ground. Therefore, he was not entitled to
relief.
McCall’s claim also was without merit. The plea transcript reflects
that after the defense counsel brought the spelling error in the name of the
victim to the attention of the trial court, the court stated: “If there’s no
objection and with the consent of the defendant, we will amend the
indictment so that the indictment reads that the victim’s name is Janice
Elouise Martin[,] J-A-N-I-C-E[] E-L-O-U-I-S-E[] M-A-R-T-I-N, as her
maiden name and she would be a McCall after her marriage to Mr.
McCall.” The defense counsel agreed to the changes, and McCall told the
court that he understood the charges against him. At the evidentiary
hearing, McCall admitted that he had understood the charge of capital
murder and that an element of the charge was “killing Janice Elouise
Martin.” The trial court did not err in finding that the transcript indicated
that McCall’s claim was meritless. Postconviction allegations that are
refuted by the trial record are without merit.
II.
McCall also contends that he was indicted under one Code section
and sentenced under another, that this was a substantial change in the
indictment and that this change was outside the limits of § 15-8-90. His
argument cannot be considered because he did not include it in his
petition to the trial court. This court will not consider an argument that is
raised for the first time on appeal.
McCall’s argument also is without merit. It is undisputed that
intentional murder, the charge to which McCall pleaded guilty, was a
lesser included offense of capital murder, the charge for which he was
indicted. Because McCall pleaded guilty to a lesser included offense,
15

amendment of the indictment was not required.
For the foregoing reasons, the judgment of the trial court is
affirmed.
(Doc. 13, Exhibit 14, at 2-4 (internal citations omitted).) A certificate of final judgment of
affirmance was issued by the Alabama Court of Criminal Appeals on January 7, 2009.
(Doc. 13, Exhibit 15.)
McCall filed his third Rule 32 petition in the Circuit Court of Monroe County,
Alabama on June 25, 2009. (Compare Doc. 1, at 5 with Doc. 13, Exhibit 16, at 2.) The trial
court summarily dismissed the petition as successive on July 1, 2009. (Doc. 13, Exhibit
16, at 2.) The Alabama Court of Criminal Appeals affirmed the trial court’s summary
dismissal by memorandum decision entered on December 4, 2009. McCall v. State, 64
So.3d 1161 (Ala.Crim.App. Dec. 4, 2009) (table).
On appeal, McCall reasserts the allegation presented in his petition
to the circuit court [i.e., that the trial court was without jurisdiction to
render judgment or to impose sentence because the indictment was
illegally amended without his consent]. McCall’s claim is procedurally
barred by Rules 32.2(a)(4) and 32.2(b), Ala.R.Crim.P., as it has been raised
and addressed in a previous post-conviction petition. Consequently, the
circuit court did not abuse its discretion by summarily dismissing this
petition.
(Doc. 13, Exhibit 16, at 2 (internal citations omitted).) McCall’s petition for writ of
certiorari was denied by the Alabama Supreme Court on September 10, 2010 (Doc. 13,
Exhibit 17); the Alabama Court of Criminal Appeals issued a certificate of final
judgment of affirmance that same day, September 10, 2010 (Doc. 13, Exhibit 18).
16

On or about August 3, 2011, McCall filed yet another Rule 32 petition in the
Circuit Court of Monroe County, Alabama, his fourth state collateral petition. (See Doc.
13, Exhibit 19.) Some twenty days later, on August 23, 2011, McCall filed the instant
habeas corpus petition in this Court (see Doc. 1, at 13) and from that document the
undersigned discerns that petitioner raises the following claims which he contends
entitle him to relief: (1) whether it was the Alabama legislature’s intent in passing §
13A-5-40 to make murder a capital offense when both the victim and perpetrator are in
the vehicle and no other felony circumstance exists; (2) his conviction was obtained by a
plea of guilty which was unlawfully induced or otherwise not made voluntarily with an
understanding of the charges and consequences of the plea; (3) denial of effective
assistance of counsel; and (4) whether intentional murder, Ala.Code § 13A-6-2(a)(1), is a
lesser-included offense of capital murder, Ala.Code § 13A-5-40(a)(17) (id. at 7-9).
Petitioner requests that this Court hold his federal petition in abeyance pending his
exhaustion of grounds 1 and 4 above in the state courts of Alabama. (Compare Doc. 1, at
7-9 & 12 with Doc. 6.) In his federal petition, McCall also contends that the statute of
limitations contained in 28 U.S.C. § 2254(d) in inapplicable since an attack on an illegal
sentence can be raised at anytime under Alabama law, he was ignorant of this ground
for relief until he filed his fourth Rule 32 petition in the Circuit Court of Monroe
County, Alabama on August 3, 2011, and he can find no authority to support the
proposition that intentional murder is a lesser-included offense of capital murder based
17

on the facts of his case. (See Doc. 1, at 12.)
In answer to the petition, the respondent contends that McCall’s federal habeas
petition comes too late and is time-barred under 28 U.S.C. ' 2244(d). (Doc. 13, at 6-9.)
McCall was extended the opportunity to respond to the respondent’s statute-oflimitations defense (see Doc. 14) and, on February 27, 2012, petitioner filed a reply to the
respondent’s answer (Doc. 21).
In this court’s order of September 16, 2011 (Doc # 5), this Court
directed that “[t]he answer shall strictly comply with the requirements of
Rule 5 of the Rules Governing ' 2254 cases in the United States District
Courts.”
Petitioner concedes that Doc # 13 is voluminous. Nevertheless,
petitioner asserts that his second Rule 32 petition (filed on January 30,
2006) and his third Rule 32 petition (filed on June 19, 2009), is absent, and
is completely material to the issue of determining the applicability of 28
U.S.C. ' 2244(d).
.

.

.

Based upon the foregoing, petitioner request that the Court
entertain said petition for habeas relief in that he is not procedurally
barred by 28 U.S.C. ' 2244(d), based upon the proper filing and
exhaustion of available post conviction remedies.
Based upon the foregoing, petitioner request that the petition be
held in abeyance in that (1) the record is insufficiently complete by
absence of two (2) records on appeal to determine that factual
development of the issues has not been made, and (2) that a properly filed
Rule 32 petition is pending to determine whether a violation of the U.S.
Constitution exists.

18

(Doc. 21, at 1-2 & 8.)9

CONCLUSIONS OF LAW
A.

Statute of Limitations & Application of the Statute to the Facts of this

Case.
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was
enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28
U.S.C. ' 2244 providing for a one-year period of limitations within which state prisoners
must file their habeas corpus petitions pursuant to 28 U.S.C. ' 2254. Wilcox v. Florida
Dept. of Corrections, 158 F.3d 1209, 1210 (11th Cir. 1998).
(d)(1) 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 period shall run from the
latest ofC
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the 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;

The undersigned finds it unnecessary to set forth the remainder of petitioner’s
reply to the respondent’s answer (see id. at 2-7) because it in no way impacts this Court’s
analysis of the statute-of-limitations defense raised by the respondent; instead, these pages of
the reply are devoted to simply reminding this Court of the claims raised in the petition (see id.).
9

19

(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.
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection. 28 U.S.C. ' 2244(d).
Subsections (B), (C), and (D) of ' 2244(d)(1) clearly do not apply to petitioner’s
case and therefore, the timeliness of McCall’s petition must be calculated under '
2244(d)(1)(A) based upon the date on which his intentional murder conviction became
final. “For prisoners whose convictions became final prior to the effective date of the
AEDPA, the one-year statute of limitations instituted by the AEDPA began to run on its
effective date, i.e., April 24, 1996.” Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999)
(citations omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). This
rule from Guenther is obviously not applicable in this case since McCall’s conviction
became final in 2004.
Section 2244(d)(1)(A) specifically provides that the one-year limitations period
will run from “the date on which the judgment became final by the conclusion of direct
review or the expiration of time for seeking such review[.]” On direct appeal, the
20

Alabama Court of Criminal Appeals affirmed McCall’s conviction and sentence by
memorandum decision entered on January 16, 2004. Because petitioner did not seek
rehearing or file a petition for writ of certiorari,10 the Alabama Court of Criminal
Appeals issued a certificate of final judgment of affirmance on February 4, 2004, and
McCall’s murder conviction became final on that date. Brown v. Hooks, 176 Fed. Appx.
949, 951 (11th Cir. Apr. 18, 2006) (“On March 23, 2001, the Alabama Court of Criminal
Appeals affirmed his conviction. Brown did not petition for certiorari review in the
Alabama Supreme Court, and his conviction became final on April 10, 2001, when the
Certificate of Judgment issued.”); see also Bridges v. Johnson, 284 F.3d 1201, 1202 (11th
Cir. 2002) (“Bridges pled guilty to terroristic threats, aggravated assault and stalking
charges, and was sentenced to 26 years= imprisonment on November 12, 1996. He did
not appeal his convictions and sentences, but he did request that his sentence be
reviewed by a sentence review panel, pursuant to O.C.G.A. ' 17-10-6. . . . As provided
in 28 U.S.C. ' 2244(d)(1)(A), his judgment became final on the date that the time for
seeking direct review expired; this date was not affected by his application for sentence
McCall=s failure to file a proper petition for writ of certiorari in the Alabama Supreme
Court prevented the court of last resort in Alabama from considering his direct appeal; therefore, the
Supreme Court of the United States clearly would have been unable to consider McCall’s case on direct
review. See Pugh v. Smith, 465 F.3d 1295, 1299 (11th Cir. 2006) (“The Supreme Court of the United States
may grant a writ of certiorari to review the final judgment of ‘the highest court of a State in which a
decision could be had.’ . . . A defendant has 90 days from the judgment of the state court of last resort
to file a petition for a writ of certiorari in the Supreme Court of the United States. . . . In the absence of a
clear statutory or constitutional bar to higher state court review . . . the Supreme Court requires
petitioners to seek review in the state=s highest court before filing a petition for writ of certiorari.”).
10

21

review, because an application for sentence review is not a part of the direct appeal
process under Georgia law. . . . Accordingly, Bridges= judgment of conviction became
final on December 21, 1996, the date on which his 30-day right to appeal the November
21, 1996 judgment expired.”); Tinker v. Moore, 255 F.3d 1331, 1332 & 1333 (11th Cir. 2001)
(“Tinker was convicted on the robbery charge, and on January 29, 1997, the Third
District Court of Appeal affirmed his conviction. . . . The mandate issued on February
14, 1997. . . . Under Florida law, a judgment against a criminal defendant becomes final
upon issuance of the mandate on his direct appeal. . . . Tinker=s mandate issued on
February 14, 1997, and thus he had until February 13, 1998, to file his ' 2254 petition,
absent tolling of the limitations period.”), cert. denied, 534 U.S. 1144, 122 S.Ct. 1101, 151
L.Ed.2d 997 (2002).11

This Court recognizes that AEDPA=s one-year statute of limitations “allows a prisoner
the time to seek direct review in the Supreme Court of the United States.” Pugh, supra, 465 F.3d at 1299;
see also Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (“Appellant was entitled to file a petition for
writ of certiorari in the United States Supreme Court within 90 days of the entry of the judgment
against him by the Florida Supreme Court. Sup.Ct.R. 13.1. The statute of limitations under 28 U.S.C. '
2244(d) should not have begun to run until this 90-day window had expired. Appellant=s state
judgment became final on December 13, 1996, when the Florida Supreme Court denied Appellant=s
motion for a rehearing. The statute of limitations should have begun to run, therefore, on March 17,
1997.”). However, in those instances, as here, where a petitioner is not entitled to seek review in the
Supreme Court of the United States, he is not entitled to the benefit of the 90-day period for filing a
petition for writ of certiorari in the United States Supreme Court, Sup. Ct. R. 13.1 (“Unless otherwise
provided by law, a petition for writ of certiorari to review a judgment in any case, civil or criminal,
entered by a state court of last resort . . . is timely when it is filed with the Clerk of this Court within 90
days after the entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of
a lower state court that is subject to discretionary review by the state court of last resort is timely when
it is filed with the Clerk within 90 days after entry of the order denying discretionary review.”); 28
U.S.C. ' 1257(a) (“Final judgments or decrees rendered by the highest court of a State in which a
11

22

Petitioner’s one-year period of limitations under AEDPA began to run on
February 4, 2004 and ran unabated for 224 days until McCall filed his first Rule 32
petition in the Circuit Court of Monroe County, Alabama on September 15, 2004. (See,
e.g., Doc. 13, at 3.) McCall’s one-year limitations period was tolled until the certificate of
final judgment of affirmance was issued by the Alabama Court of Criminal Appeals on
July 11, 2005 (see Doc. 13, Exhibit 13), thereby ending petitioner’s first collateral attack
on his conviction and sentence. McCall’s one-year limitations period began to run again
on July 12, 2005 and expired some 141 days later, on November 29, 2005, several months
prior to the filing of his second Rule 32 petition in the Circuit Court of Monroe County,
Alabama on January 30, 2006 (see Doc. 1, at 4). Compare McCloud v. Hooks, 560 F.3d 1223,
1227 (11th Cir. 2009) (“While a Rule 32 petition is a tolling motion under § 2244(d)(2), it
cannot toll the one-year limitations period if that period has expired prior to filing the
Rule 32 petition.”) with Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005) (“On March
19, 1999, Howell’s attorney filed a motion for an extension of time within which to file a
petition for postconviction relief. That motion was granted and Howell’s attorney filed
decision could be had, may be reviewed by the Supreme Court by writ of certiorari where . . . any title,
right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or
statutes of, or any commission held or authority exercised under, the United States.”). See Pugh, 465
F.3d at 1299-1300. As previously established, McCall did not seek certiorari relief in the state court of
last resort, that is, the Alabama Supreme Court; therefore, he was not entitled to seek direct review in
the United States Supreme Court. See id. McCall’s conviction became final when the certificate of
judgment issued from the Alabama Court of Criminal Appeals on February 4, 2004, Brown, supra, and
this Court need not add to that final judgment date the 90 days contemplated in Supreme Court Rule
13.1, compare Pugh, 465 F.3d at 1299-1300 with Tinker, supra, 255 F.3d at 1332 & 1333.

23

a state petition for postconviction relief on August 30, 199 9, more than two months
after the federal limitations period elapsed. It is undisputed that Howell’s motion for an
extension of time did not meet the criteria of section 2244(d)(2) as a ‘properly filed
application’ for postconviction relief.”), cert. denied, 546 U.S. 1108, 126 S.Ct. 1059, 163
L.Ed.2d 885 (2006), and Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (“Under
§ 2244(d)(2), even ‘properly filed’ state-court petitions must be ‘pending’ in order to toll
the limitations period. A state-court petition like Webster’s that is filed following the
expiration of the limitations period cannot toll that period because there is no period
remaining to be tolled.”), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 454 (2000);
see also Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S.Ct. 1807, 1811-1812, 161 L.Ed.2d 669
(2005) (“As in Artuz, we are guided by the ‘common usage’ and ‘commo[n]
underst[anding]’ of the phrase ‘properly filed.’ In common understanding, a petition
filed after a time limit, and which does not fit within any exceptions to that limit, is no
more ‘properly filed’ than a petition filed after a time limit that permits no exceptions.
The purpose of AEDPA’s statute of limitations confirms this commonsense reading. On
petitioner’s theory, a state prisoner could toll the statute of limitations at will by filing
untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto
extension mechanism, quite contrary to the purpose of AEDPA, and open the door to
abusive delay.”). Because petitioner did not file his federal habeas challenge to his
conviction and sentence until August 23, 2011 (Doc. 1, at 13), almost six years after the
24

one-year limitations period expired on November 29, 2005, the only arguable means by
which this Court can proceed further in its analysis is by finding that petitioner is
entitled to equitable tolling of AEDPA’s one-year limitations period.
Recently, in Holland v. Florida, 560 U.S. , 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010),
the Supreme Court specifically held, for the first time, that Ҥ 2244(d) is subject to
equitable tolling in appropriate cases[,]” id. at , 130 S.Ct. at 2560, and reiterated “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.” Id. at , 130 S.Ct. at 2562. For its part, the Eleventh
Circuit has long embraced the doctrine of equitable tolling with regard to the one-year
limitations period at issue: “Equitable tolling is to be applied when ‘“extraordinary
circumstances” have worked to prevent an otherwise diligent petitioner from timely
filing his petition.’ . . . Thus, the petitioner must show both extraordinary circumstances
and due diligence in order to be entitled to equitable tolling.” Diaz v. Secretary for the
Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (citation omitted). “Section
2244 is a statute of limitations, not a jurisdictional bar. Therefore, it permits equitable
tolling ‘when a movant untimely files because of extraordinary circumstances that are
both beyond his control and unavoidable even with diligence.’” Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000) (citation omitted). Thus, the one-year limitations provision
need not be equitably tolled unless there is evidence that “extraordinary circumstances”
25

beyond petitioner’s control made it impossible for him to file his petition on time. See
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-619 (3rd Cir. 1998)
(“[E]quitable tolling is proper only when the ‘principles of equity would make [the]
rigid application [of a limitation period] unfair.’ . . . Generally, this will occur when the
petitioner has ‘in some extraordinary way . . . been prevented from asserting his or her
rights.’ . . . The petitioner must show that he or she ‘exercised reasonable diligence in
investigating and bringing [the] claims.’ . . . Mere excusable neglect is not sufficient.”).
The Supreme Court in Holland indicated that “[t]he diligence required for equitable
tolling purposes is reasonable diligence, not maximum feasible diligence[,]” id. at , 130
S.Ct. at 2565, and gave the following guidance with respect to “extraordinary
circumstances”:
We have previously held that “a garden variety claim of excusable
neglect,” such as a simple “miscalculation” that leads a lawyer to miss a
filing deadline, does not warrant equitable tolling. But the case before us
does not involve, and we are not considering, a “garden variety claim” of
attorney negligence. Rather, the facts of this case present far more serious
instances of attorney misconduct. And, as we have said, although the
circumstances of a case must be “extraordinary” before equitable tolling
can be applied, we hold that such circumstances are not limited to those
that satisfy the test that the Court of Appeals used in this case.
The record facts that we have set forth in Part I of this opinion
suggest that this case may well be an “extraordinary” instance in which
petitioner’s attorney’s conduct constituted far more than “garden variety”
or “excusable neglect.” To be sure, Collins failed to file Holland’s petition
on time and appears to have been unaware of the date on which the
limitations period expired-two facts that, alone, might suggest simple
negligence. But, in these circumstances, the record facts we have
26

elucidated suggest that the failure amounted to more: Here, Collins failed
to file Holland’s federal petition on time despite Holland’s many letters
that repeatedly emphasized the importance of his doing so. Collins
apparently did not do the research necessary to find out the proper filing
date, despite Holland’s letters that went so far as to identify the applicable
legal rules. Collins failed to inform Holland in a timely manner about the
crucial fact that the Florida Supreme Court had decided his case, again
despite Holland’s many pleas for that information. And Collins failed to
communicate with his client over a period of years, despite various pleas
from Holland that Collins respond to his letters.
Id. at

, 130 S.Ct. at 2564.
In this case, petitioner has not established that the instant habeas corpus petition

was timely filed nor has he established that extraordinary circumstances and due
diligence counsel equitable tolling of the limitations period. See Spottsville v. Terry, 476
F.3d 1241, 1245 (11th Cir. 2007) (“‘The burden of establishing entitlement to this
extraordinary remedy plainly rests with the petitioner[.]’”). Petitioner makes no
argument that he was ignorant of the one-year limitations period (compare Doc. 1 with
Doc. 21).12 Instead, it is McCall’s apparent position that the one-year limitations period

In truth, such an argument would not serve as a basis to equitably toll the
limitations period. Gardner v. Walker, 2005 WL 1127137, *1 (M.D. Ga. May 7, 2005) (“‘Ignorance
of the law is no excuse; it is not a reason for equitable tolling.’ . . . Here, Petitioner’s Objection is
without merit because his ignorance of AEDPA=s limitations period fails to amount to
‘extraordinary circumstance[s]’ for equitable tolling purposes.”); see also Burton v. Deloach, 2008
WL 2131398, *2 (M.D. Ala. Mar. 13, 2008) (“The law is well settled that an inmate=s lack of legal
knowledge, his failure to understand legal principles and/or the inability to recognize potential
claims for relief at an earlier juncture do not constitute extraordinary circumstances sufficient to
warrant equitable tolling of the limitation period.”), report & recommendation adopted, 2008 WL
2131395 (M.D. Ala. May 20, 2008); see Teel v. Farrell, 2006 WL 1148817, *4 (M.D. Ala. Apr. 28,
2006) (“[A]n inmate=s status as a pro se litigant does not warrant equitable tolling.”).
12

27

simply is not applicable to his case since he raises jurisdictional issues (see Doc. 1, at 12)
and, further, that he properly filed and exhausted all available post-conviction remedies
(see Doc. 21, at 8). To the extent petitioner contends that he properly filed and exhausted
all post-conviction petitions (i.e., Rule 32 petitions) in the state courts of Alabama (see
Doc. 21, at 8), the undersigned respectfully disagrees with this assessment. As reflected
above, while McCall’s first Rule 32 collateral petition did toll the running of his oneyear limitations period, the one-year limitations period began to run again on July 12,
2005 and expired before McCall filed his second Rule 32 petition on January 30, 2006.13
Thus, petitioner has no viable argument in this regard. More importantly, with respect
to petitioner’s implicit jurisdictional argument for tolling the limitations period (see Doc.
1, at 12), he has cited no authority which stands for this proposition; in fact, the
authority which exists stands for the contrary. See, e.g., Barreto-Barreto v. United States,
551 F.3d 95, 100 (1st Cir. 2008) (pointing out that “[n]othing in the language of § 2255
By petitioner’s own admission his second Rule 32 petition was not filed until
January 30, 2006 (see, e.g., Doc. 21, at 2); therefore, his argument that this Court should hold the
instant petition in abeyance until all the state-court records directed to his second and third
Rule 32 petitions are produced (see id. at 1-2 & 8) is specious. Stated differently, because the oneyear limitations period expired in this case before McCall filed his second Rule 32 petition, there
is simply no need for this Court to have “all” state records referencing his second and third Rule
32 petitions; the state-court records produced by the respondent and directed to these two statecourt collateral petitions (see Doc. 13, Exhibits 14-18) are sufficient.
13

The undersigned need also note here that since petitioner’s second and third Rule 32
petitions did not toll the one-year limitations period, see, e.g., McCloud v. Hooks, supra, 560 F.3d
at 1227, the fourth Rule 32 petition McCall filed in the Circuit Court of Monroe County,
Alabama on August 3, 2011 obviously does not toll the limitations period, whether “properly”
filed or not.

28

suggests that jurisdictional challenges are exempt from the one-year limitations period”
and holding that such petitions “are not exempt from § 2255’s filing deadline”); Davis v.
Secretary, Dep’t of Corrections, 2009 WL 4730548, *1 (M.D. Fla. Dec. 7, 2009) (“There is no
exception under AEDPA’s statute of limitation for a § 2254 claim that the state court
lacked subject matter jurisdiction to impose the sentence for the conviction because the
indictment was defective.”); United States v. Williams, 2009 WL 3230399, *8 (N.D. Fla.
Oct. 2, 2009) (“Jurisdiction is specifically listed as a ground for § 2255 relief, and is not
excluded from [] the one year limitations period of § 2255(f)[.]”), aff’d, 383 Fed.Appx.
927 (11th Cir. June 21, 2010), cert. denied,

U.S.

, 131 S.Ct. 846, 178 L.Ed.2d 575 (2010).

Accordingly, the undersigned concludes that nothing other than petitioner’s own lack
of due diligence is responsible for the untimeliness of the filing of the instant petition.
This is simply not one of those rare cases in which principles of equitable tolling can
save petitioner from AEDPA’s one-year limitations period.
B.

Certificate of Appealability.

Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned
recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll.
§ 2254, Rule 11(a) (“The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”). The habeas corpus statute makes
clear that an applicant is entitled to appeal a district court’s denial of his habeas corpus
petition only where a circuit justice or judge issues a certificate of appealability. 28
29

U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the applicant
has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2243(c)(2). Where, as here, a habeas petition is being denied on procedural grounds
without reaching the merits of the underlying constitutional claims, “a COA should
issue [only] when the prisoner shows . . . that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d
542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931
(2003) (“Under the controlling standard, a petitioner must ‘sho[w] that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were “adequate to
deserve encouragement to proceed further.”’”). Because equitable tolling is an
extraordinary remedy which is rarely granted, see Diaz, supra, 362 F.3d at 701 (“[T]his
court has rejected most claims for equitable tolling.”), the undersigned finds that a
reasonable jurist could not conclude that this Court is in error for dismissing the
petition or that McCall should be allowed to proceed further, Slack, supra, 529 U.S. at
484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist could not conclude either
that the district court erred in dismissing the petition or that the petitioner should be
30

allowed to proceed further.”).
Rule 11(a) further provides: “Before entering the final order, the court may direct
the parties to submit arguments on whether a certificate should issue.” If there is an
objection to this recommendation by either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this report and
recommendation. See, e.g., Brightwell v. Patterson, CA 11-00165-WS-C, Doc. 14 (order
from Eleventh Circuit denying petitioner a certificate of appealability in a case in which
this exact procedure was outlined in the report and recommendation); Griffin v. DeRosa,
2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report
& recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct.
5, 2010).
CONCLUSION
The Magistrate Judge recommends that Leon McCall’s petition for writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed as time-barred under § 2244(d).
McCall is not entitled to a certificate of appealability and, therefore, he is not entitled to
appeal in forma pauperis.
The instructions which follow the undersigned’s signature contain important
information regarding objections to the report and recommendation of the Magistrate

31

Judge.
DONE this the 30th day of March, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

32

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND
RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND
FINDINGS CONCERNING NEED FOR TRANSCRIPT
l.
Objection. Any party who objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file specific written objections with the
Clerk of this court. Failure to do so will bar a de novo determination by the district judge of
anything in the recommendation and will bar an attack, on appeal, of the factual findings of the
Magistrate Judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988);
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging
the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA
LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a
dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing
a >Statement of Objection to Magistrate Judge=s Recommendation= within ten
days14 after being served with a copy of the recommendation, unless a different
time is established by order. The statement of objection shall specify those
portions of the recommendation to which objection is made and the basis for the
objection. The objecting party shall submit to the district judge, at the time of
filing the objection, a brief setting forth the party=s arguments that the magistrate
judge=s recommendation should be reviewed de novo and a different disposition
made. It is insufficient to submit only a copy of the original brief submitted to
the magistrate judge, although a copy of the original brief may be submitted or
referred to and incorporated into the brief in support of the objection. Failure to
submit a brief in support of the objection may be deemed an abandonment of the
objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the
district judge's order or judgment can be appealed.
2.
Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. ' 1915 and
FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are
adequate for purposes of review. Any party planning to object to this recommendation, but
unable to pay the fee for a transcript, is advised that a judicial determination that transcription is
necessary is required before the United States will pay the cost of the transcript.

Effective December 1, 2009, the time for filing written objections was extended to “14 days after
being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).
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