Opinion
Civil Action 00-0843-CB-M
December 14, 2000
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be dismissed as time barred and that judgment be entered in favor of Respondent Johnny Nagle and against Petitioner Richard Campbell pursuant to 28 U.S.C. § 2254(d).
Petitioner's probation was revoked in the Circuit Court of Mobile County on December 23, 1997 (Doc. 6, p. 3; Doc. 6, Exhibit A, p. 4). Campbell did not appeal the revocation ( see Doc. 6, p. 3). Petitioner did, however, file a State Rule 32 petition on January 29, 1999 (Doc. 6, Exhibit A, pp. 11-27) which was dismissed as the claims raised therein were procedurally defaulted (Doc. 6, Exhibit A, pp. 39-40) Campbell appealed the denial of his petition, but the Alabama Court of Criminal Appeals affirmed the dismissal on preclusion grounds (Doc. 6, Exhibit B). Respondent asserts that Campbell filed an Application for Rehearing which was overruled on November 19, 1999 ( see Doc. 6, p. 4). The certificate of judgment was issued on December 7, 1999 (Doc. 6, Exhibit C). Petitioner filed a complaint with this Court on September 18, 2000 raising the claim that he was denied the effective assistance of counsel (Doc. 1).
The underlying conviction was based on a plea of guilt to a charge of robbery first degree on October 28, 1993 in the Mobile County Circuit Court (see Doc. 6, p. 2; cf. Doc. 5). Campbell was given a split sentence of fifteen years in the state penitentiary, with one year to be served and the balance to be suspended pending his good behavior (Doc. 6, pp. 2-3; Doc. 6 Exhibit A, p. 2).
Respondent has answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 6, pp. 4-6). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA) which amended, in pertinent part, 28 U.S.C. § 2254. The specific provision states as follows:
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 the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.28 U.S.C. § 2254(d)(1)(A).
The AEDPA became effective on April 24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). Petitioner's revocation became final on February 3, 1998, the day on which he could have last filed an appeal of his revocation ( see Doc. 6, p. 5; Alabama Rule of Appellate Procedure 4).
February 3, 1998 is the forty-second day following the date of revocation, December 23, 1997.
Petitioner's habeas corpus petition was not filed in this Court until September 18, 2000, more than thirty-one months after his revocation became final. However, Campbell had filed a Rule 32 petition in state court on January 29, 1999, five days before the one-year statute of limitations period would have expired. The Court notes that AEDPA states that "[t]he 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. § 2254(d)(2). Campbell's Rule 32 petition was not completed until December 7, 1999 (Doc. 6, Exhibit C).
Respondent argues, though, that Petitioner's Rule 32 petition does not toll the AEDPA limitations period as it was not "properly filed" in the State court (Doc. 6, p. 6). Specifically, Respondent argues that because the circuit court judge who dismissed the petition did so on the grounds that the claims were procedurally defaulted, the petition was improperly filed. The Court will not, however, decide on the correctness of that argument as it is unnecessary to reach a determination in this action.
Campbell waited five-days-short of a year to file his Rule 32 petition. Once the Rule 32 was completed, Campbell waited more than nine months before filing this action. Clearly, when the two periods of time are added together, Petitioner's habeas corpus petition was filed well beyond the one-year grace period allowed and filed in violation of 28 U.S.C. § 2254(d). The Court finds that Petitioner has provided no cause for ignoring the dictates of the Anti-Terrorism and Effective Death Penalty Act of 1996: this action is time-barred.
For the reasoning stated herein, it is recommended that this habeas petition be dismissed as time-barred and that judgment be entered in favor of Respondent Johnny Nagle and against Petitioner Richard Campbell on all claims.