Opinion
Civil Action No. 00-0792-BH-S
April 26, 2001
RECOMMENDATION OF MAGISTRATE JUDGE
Alan Derrick Bumpers, a state prisoner in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1). The petition has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2, and the Standing Order of General Reference. It is recommended that the petition be dismissed as time barred pursuant to 28 U.S.C. § 2244 (d).
Petitioner's petition challenging his March 12, 1981 convictions following pleas of guilty to charges of burglary, third degree, and theft of property, second degree, in the Circuit Court of Mobile County, Alabama, was filed subsequent to the April 24, 1996, enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended, in pertinent part, 28 U.S.C. § 2244. The procedural history of this action is not in dispute.
By order dated January 18, 2001 (Doc. 14), Petitioner was advised of Respondent's contention that Petitioner's habeas corpus petition is due to be dismissed pursuant to 28 U.S.C. § 2244 (d)(1)(A), and Petitioner was afforded an opportunity to reply. Petitioner filed a response (Doc. 15) on February 8, 2001; however, Petitioner has not substantially disputed the procedural history outlined in Respondent's Answer.
After Petitioner was sentenced on March 12, 1981 for the felony charges of burglary and theft of property, he took no direct appeal of his convictions. However, on April 6, 1998, Petitioner filed a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure attacking a 1990 conviction for attempted murder in which the 1981 convictions were used to enhance his punishment pursuant to Alabama's Habitual Felony Offender Act. In the Rule 32 petition, Petitioner attacked the voluntariness of his pleas which resulted in the three convictions in 1981. Petitioner's Rule 32 petition was summarily denied by the trial court and, on May 28, 1999, the Alabama Court of Criminal Appeals affirmed the summary denial of Petitioner's Rule 32 petition.
Therefore, on August 24, 1999, Petitioner filed subsequent Rule 32 petitions again challenging the validity of his three 1981 convictions. These petitions were summarily dismissed by the trial court on the grounds that they were barred by the statute of limitations found in Rule 32.2(c) of the Alabama Rules of Criminal Procedure. On March 24, 2000, the Alabama Court of Criminal Appeals affirmed on the grounds that the petitions were barred by the statute of limitations. On August 30, 2000, Petitioner filed the instant habeas petition attacking his 1981 convictions.
Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April 24, 1996 enactment of the AEDPA, a one year statute of limitation is applicable to an application for a writ of habeas corpus by a person in custody on a 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.
§ 2244(d)(1). A properly filed application for state post-conviction review tolls the one year time period. See § 2244(d)(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."); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (state postconviction petition must meet state filing deadlines and must be "pending" in order to toll the statutory limitations period).
Because Petitioner's conviction became final, without direct appeal, in 1981, prior to the effective date of the AEDPA, the one year period of limitations applicable to this habeas corpus action ran from April 24, 1996, through April 23, 1997. See Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998); Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998) (statute of limitations in § 2244 does not expire, for convictions which became final before effective date of AEDPA, until April 23, 1997). This one year "grace period" has previously been adopted by this Court for those petitioners whose convictions became final prior to the enactment of the AEDPA to prevent an impermissible retroactive application of the law to their cases.
Petitioner's habeas corpus petition was not filed in this Court until August 30, 2000, more than three years after the grace period had expired. Even if Petitioner's Rule 32 petitions were "properly filed" petitions within the meaning of § 2244(d)(2), Petitioner cannot take advantage of the tolling provision of that section because these petitions were filed after expiration of the grace period. Clearly, Petitioner's habeas corpus petition was filed well beyond the one year grace period and filed in violation of 28 U.S.C. § 2244 (d). Therefore, the petition is time barred in this Court.
Accordingly, it is the recommendation of the undersigned Magistrate Judge that Petitioner's habeas corpus petition be DISMISSED as time barred.
The attached sheet contains important information regarding objections to this Recommendation.