Walker v. Patterson et al
Filing
38
ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Gary Eugene Walker. Signed by Senior Judge Charles R. Butler, Jr on 4/28/2014. (adk)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
SOUTHERN
DIVISION
GARY
EUGENE
WALKER,
(#
145517),
Petitioner
v.
GARY
HETZEL,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
CIVIL
ACTION
NO.
12-‐00732-‐CB-‐B
ORDER
This
matter
is
before
the
Court
on
the
Report
and
Recommendation
of
the
Magistrate
Judge
(Doc.
35)
and
on
Petitioner’s
Objections
thereto
(Doc.
37).
The
Magistrate
Judge
recommends
that
this
habeas
petition
be
dismissed
as
time
barred
because
it
was
not
filed
within
one
year
of
the
date
judgment
became
final
and
there
equitable
tolling
does
not
apply
In
his
objection,
Petitioner
argues
that
the
Magistrate
Judge
used
the
wrong
triggering
date
for
the
limitations
period.
Rather
than
measuring
the
one-‐year
period
from
the
date
judgment
became
final
as
required
by
28
U.S.C.
§
2244(d)(1)(A),
Petitioner
contends
that
the
limitations
period
should
be
measured
based
on
§
2244(d)(1)(D).
Under
that
subsection,
the
period
begins
to
run
on
“the
date
on
which
the
factual
predicate
of
the
claim
or
claims
could
have
been
discovered
through
the
exercise
of
due
diligence.”
28
U.S.C.
§
2244(d)(1)(D).
Due
diligence
requires
that
Petitioner
“must
show
some
good
reason
why
he
or
she
was
unable
to
discover
the
facts
supporting
the
motion
before
filing
the
first
habeas
motion.”
In
re
Boshears,
110
F.3D
1538,
1540
(11th
Cir.
1997)
(defining
due
diligence
in
context
of
second
or
successive
petition);
accord
Melson
v.
Allen,
538
F.3d
983
(11th
Cir.
2008)
(applying
Boshears
due
diligence
definition
to
2244(d)(1)(D)),
rev’d
on
other
grounds,
560
U.S.
___,
130
S.Ct.
2549
(2010).
A
mere
allegation
that
Petitioner
did
not
know
about
the
claims
earlier
is
not
sufficient.
Id.
Here,
Petitioner
points
to
two
new
pieces
of
evidence
that
he
has
recently
obtained,
but
he
has
failed
to
explain
why
this
evidence
could
not
have
been
discovered
earlier.1
In
sum,
Petitioner’s
objection
has
no
merit.
As
the
Magistrate
Judge
correctly
concluded,
the
one-‐year
limitations
period
began
to
run
on
the
date
judgment
became
final,
28
U.S.C.
§
2244(d)(1)(A),
and,
thus,
the
petition
is
time
barred.
Therefore,
after
de
novo
review,
the
Court
hereby
OVERRULES
Petitioner’s
objections
and
ADOPTS
the
Magistrate
Judge’s
Report
and
Recommendation.
DONE
and
ORDERED
this
the
28th
day
of
April,
2014
s/Charles
R.
Butler,
Jr.
Senior
United
States
District
Judge
1The
first
piece
of
evidence
is
a
letter
from
the
Alabama
Bar
Association
dated
March
31,
2014,
confirming
that
Petitioner’s
trial
attorney,
Vader
Al
Pennington,
has
been
disciplines
11
times
since
1991,
including
two
suspensions,
and
ending
with
disbarment
in
2010.
Clearly,
Mr.
Pennington’s
status
has
been
a
matter
of
public
record
since
at
least
2010.
The
second
is
a
supplemental
forensics
report
dated
June
18,
1986,
providing
analysis
of
a
palm
print
submitted
to
the
laboratory
for
identification
and
identified
as
Petitioner’s.
Petitioner
states
that
he
obtained
a
copy
of
this
document
in
July
2013
from
attorneys
who
represented
him
in
his
state
court
DNA
discovery
motion.
Petitioner,
has
provided
no
explanation
as
to
why
he
could
not
have
obtained
this
evidence
through
discovery
at
some
earlier
stage
of
the
state
court
proceedings,
such
as
one
of
his
six
Rule
32
petitions.
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