Opinion
Civil Action 00-1119-CR-S
March 23, 2001
RECOMMENDATION OF MAGISTRATE JUDGE
Earnest Lee Arrington, 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. I). 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 October 1 and 2, 1985 convictions for robbery, first degree, in the Circuit Court of Mobile County, Alabama, for which he received concurrent sentences of life imprisonment, 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 March 6, 2001 (Doc. 12), 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. 13) on March 21, 2001; however, Petitioner has not disputed the procedural history outlined in Respondent's Answer.
In the instant habeas petition, Petitioner attacks the validity of two state court convictions, both for robbery, first degree. In the first conviction (CC 85-1650), Petitioner was convicted by a jury following a trial conducted on October 1, 1985. Then, on the following day, October 2, 1985, Petitioner entered a plea of guilty to an unrelated charge of robbery, first degree (CC 85-1143). The Circuit Judge then sentenced Petitioner to a term of imprisonment for life, concurrent in each case. No direct appeal was taken by Petitioner in CC 85-1143; however, he did appeal his conviction in CC 85-1650. That conviction was affirmed by the Alabama Court of Criminal Appeals on January 13, 1987, Arrington v. State, 513 So.2d 40 (Ala.Crim.App. 1987), and certiorari was denied by the Alabama Supreme Court on August 28, 1987. Subsequently, Petitioner filed a post-conviction petition pursuant to Rule 20 of the Alabama Rules of Criminal Procedure (Temporary) which was dismissed by the trial court on October 8, 1987, for Petitioner's failure to comply with the procedural requirements of Rule 20. No appeal was taken.
Thereafter, on February 21, 1996, Petitioner filed a second post-conviction petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure challenging his convictions in both CC 85-1650, and CC 85-1143. That petition was dismissed by the trial court on March 11, 1996 as time-barred pursuant to Rule 32.2(c). No appeal was taken. Then, on December 29, 2000, Petitioner filed the instant habeas petition in this Court asserting the various grounds for relief contained in the petition.
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 postconviction 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 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 December 29, 2000, more than three years after the grace period had expired. 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.