Sturdivant v. Jones

Filing 14

Order that Petitoner may reply by 10/5/17 to 13 Answer to Complaint filed by Karla Jones; the habeas petition will be taken under submission on 10/6/2017. If evidentiary hearing is warranted, appropriate action will be taken. Signed by Magistrate Judge Katherine P. Nelson on 9/14/17. copy mailed to petitioner (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TOMMY STURDIVANT,
#148248,
Petitioner,
v.
KARLA JONES,
Respondent.

)
)
)
)
)
)
)
)
)

Civil Action No. 17-0233-WS-N

ORDER
This matter is before the Court on Petitioner’s petition for writ of habeas
corpus and Respondent’s Answer. (Docs. 1, 7, 9). Petitioner Tommy Sturdivant, an
Alabama prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254 (Docs. 1,7). Through the Office of the Attorney General of
the State of Alabama, Respondent Karla Jones, has timely filed an Answer to the
petition. (Doc. 13). Under S.D. Ala. GenLR 72.2(b), the petition has been referred to
the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is
authorized to require responses, issue orders to show cause and any other orders
necessary to develop a complete record, and to prepare a report and
recommendation to the District Judge as to appropriate disposition of the petition,
in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules
Governing Section 2254 Cases in the United States District Courts.
Upon consideration of the Respondent’s Answer, Sturdivant is hereby
permitted to submit a reply to the Answer showing cause why his habeas petition
should not be dismissed for the reasons stated in the Answer. The reply must be
1

filed with the Court no later than Thursday, October 5, 2017. See Rule 5(e) of the
Rules Governing Section 2254 Cases (“The petitioner may submit a reply to the
respondent’s answer … within a time fixed by the judge.”).
As detailed in the Answer, it appears Sturdivant’s conviction became final on
June 11, 2017 (Doc. 4 at 15-18), making his habeas petition untimely. Because
Sturdivant’s habeas petition was filed after April 24, 1996, it is subject to
application of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of Corr., 680
F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S. Ct. 1625 (2013). Among other
things, AEDPA imposes the following time limit for bringing habeas petitions:
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 of-(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;
(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.
28 U.S.C. § 2244(d)(1).
2

Because Sturdivant is proceeding pro se in this action, he is advised that
certain equitable exceptions may excuse an untimely habeas claim. First,
the district court may still review an untimely petition filed by a
petitioner entitled to equitable tolling. As the Supreme Court has
explained, the time period specified in 28 U.S.C. § 2244 is a statute of
limitations, not a jurisdictional bar, and Section 2244 does not bar the
application of equitable tolling in an appropriate case. Holland v.
Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010).
The Supreme Court []affirmed, however, 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 2562 (internal quotation
marks omitted); Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999) (per curiam) (holding that equitable tolling is available
“when a movant untimely files because of extraordinary circumstances
that are both beyond his control and unavoidable even with diligence”).
“The diligence required for equitable tolling purposes is ‘reasonable
diligence,’ not ‘maximum feasible diligence.’ ” Holland, 130 S. Ct. at
2565 (internal quotation marks and citation omitted). As for the
“extraordinary circumstance” prong, [it] require[s] a defendant to show
a causal connection between the alleged extraordinary circumstances
and the late filing of the petition. See Lawrence v. Florida, 421 F.3d
1221, 1226–27 (11th Cir. 2005).
San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (footnote omitted).
Second,
[i]n McQuiggin[ v. Perkins], the Supreme Court held that a federal
habeas petitioner can qualify for an equitable exception to the one-year
statute of limitation and obtain federal review of his claims about
constitutional errors in his state court proceedings if he satisfies the
threshold test established in Schlup[ v. Delo, 513 U.S. 298, 115 S. Ct.
851, 130 L. Ed. 2d 808 (1995)]. McQuiggin, 133 S. Ct. [1924,] 1928[
(2013)]. Under that test, the petitioner must “persuade[ ] the [habeas]
court that, in light of the new evidence, no juror, acting reasonably,

3

would have voted to find him guilty beyond a reasonable doubt.” Id.
(quoting Schlup, 513 U.S. at 329, 115 S.Ct. at 868). The test devised in
Schlup is intended to “ensure[ ] that [the] petitioner's case is truly
extraordinary, while still provide petitioner a meaningful avenue by
which to avoid a manifest injustice.” 513 U.S. at 327, 115 S. Ct. at 867
(internal quotation marks and citation omitted). The petitioner must
prove that “he is ‘actually innocent,’ ” id. at 327, 115 S. Ct. at 867, by
producing “new reliable evidence ... not presented at trial,” id. at 324,
115 S. Ct. at 865, that “raise[s] sufficient doubt about [his] guilt to
undermine confidence in the result of the trial,” id. at 317, 115 S.Ct. at
862.
Brown v. Sec'y, Fla. Dep't of Corr., 580 F. App'x 721, 726–27 (11th Cir. 2014) (per
curiam) (unpublished).
The Respondent also asserts that some of Sturdivant’s habeas claims are
procedurally defaulted. “A state prisoner seeking federal habeas relief cannot raise
a federal constitutional claim in federal court unless he first properly raised the
issue in the state courts. The doctrine of procedural default was developed as a
means of ensuring that federal habeas petitioners first seek relief in accordance
with established state procedures.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.
2001) (citation omitted). Assuming that this is true,
[p]rocedural default will be excused only in two narrow circumstances.
First, a petitioner may obtain federal review of a procedurally
defaulted claim if he can show both “cause” for the default and actual
“prejudice” resulting from the default. To establish ‘cause’ for
procedural default, a petitioner must demonstrate that some objective
factor external to the defense impeded the effort to raise the claim
properly in the state court. To establish “prejudice,” a petitioner must
show that there is at least a reasonable probability that the result of
the proceeding would have been different. Second, a federal court may
also grant a habeas petition on a procedurally defaulted claim, without
a showing of cause or prejudice, to correct a fundamental miscarriage

4

of justice. A fundamental miscarriage of justice occurs in an
extraordinary case, where a constitutional violation has resulted in the
conviction of someone who is actually innocent.
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations and quotation
omitted).
Accordingly, no later than Thursday, October 5, 2017, Sturdivant may
reply to Respondent’s Answer, and submit to the Court any briefing, evidence,
and/or other materials he deems necessary to show why his petition should not be
dismissed as time-barred and/or procedurally defaulted. Sturdivant’s habeas
petition will be taken under submission on Friday, October 6, 2017, Once the
petition is taken under submission, no further submissions related to the issues
raised may be filed unless the proponent obtains leave of court for good cause
shown, and the undersigned will review the parties’ submissions under Rule 8 of the
Rules Governing Section 2254 Cases to determine whether an evidentiary hearing
is warranted. If an evidentiary hearing is warranted, appropriate action under
Rule 8(c) will be promptly taken. If a hearing is not warranted, a recommendation
as to the appropriate disposition of Sturdivant’s petition shall issue.
DONE and ORDERED this the 14th day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

5