Opinion
Civil Action 99-1111-BH-M
June 22, 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 Gwendolyn C. Mosely and against Petitioner Robert Mason Hall pursuant to 28 U.S.C. § 2254 (d).
Petitioner was convicted of first degree sodomy in the Circuit Court of Mobile County on June 20, 1995 for which he received a sentence of life in the state Penitentiary (Doc. 1). Hall appealed the conviction, which was affirmed by the Alabama Court of Criminal Appeals in a non-published memorandum opinion ( see Doc. 9, pp. 6-8). Hall v. State, 687 So.2d 226 (Ala.Crim.App. 1996) (Table). The conviction became final on May 24, 1996, the day on which the Alabama Court of Criminal Appeals denied Hall's petition for rehearing. Hall v. State, 687 So.2d 226 (Ala.Crim.App. 1996) (Table).
The Court notes that no evidence has been made available which demonstrates that any further action was taken with regard to the direct appeal following this date. Though this date may not be factually accurate, it is the date the Court will use for computation purposes.
Petitioner filed a State Rule 32 petition on January 30, 1997 (Doc. 12, Exhibit A, C. 15, 19-46). Following the denial of the petition by the lower court, the Alabama Court of Criminal Appeals affirmed the denial, finding the claims to be without merit or precluded because they were not timely raised (Doc. 9, Exhibit D). Hall v. State, 727 So.2d 186 (Ala.Crim.App. 1997) (Table). A certificate of judgment was issued on January 12, 1998 (Doc. 12, Exhibit E).
Petitioner filed a second State Rule 32 petition on August 28, 1998 (Doc. 12, Exhibit F, C. 17, 20-31). Following the denial of the petition by the lower court, the Alabama Court of Criminal Appeals affirmed the denial, finding that the petition was not properly brought because it was successive (Doc. 9, Exhibit I).
Petitioner filed a complaint with this Court on December 27, 1999 raising the following claims: (1) His trial attorney rendered ineffective assistance; and (2) the prosecutor did not divulge evidence to Hall which may have helped him in his trial (Doc. 4).
Respondent states that Petitioner did not file this complaint until February 7, 2000 (Doc. 9, p. 15). While Hall did not file a petition which was in the form this Court requires until that date (Doc. 4), Petitioner initiated this action on December 27, 1999 with the filing of a federal habeas petition, albeit on one of this Court's old forms (Docs. 1, 3).
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. 9, pp. 15-20). 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 conviction became final on May 24, 1996, the day on which the Alabama Court of Criminal Appeals denied Hall's petition for rehearing. Hall v. State, 687 So.2d 226 (Ala.Crim.App. 1996) (Table). As such, Hall's conviction became final after the effective date of the AEDPA and he had one year from May 24, 1996 to file a federal habeas petition.
However, the 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) (emphasis added). Hall had filed a State Rule 32 petition in state court on January 30, 1997, 50 he used more than seven months of his one-year limitations period to file his first Rule 32 petition. That petition became final on January 12, 1998 and the clock began running again.
A second Rule 32 petition was filed on August 28, 1998, but the Alabama Court of Criminal Appeals ultimately determined that the petition was improper as it was successive. Respondent argues that this second State Rule 32 petition does not toll the AEDPA limitations period as it was not properly filed in the state court (Doc. 9). Respondent is correct. The Eleventh Circuit Court of Appeals recently held, in Weekley v. Moore, 204 F.3d 1083, 1086 (11th Cir. 2000), that state court motions for post-conviction relief which were dismissed as successive petitions were not properly filed and would not toll the statute of limitations under AEDPA. Therefore, Hall's second Rule 32 petition will not be considered to have tolled the limitations period.
The Court notes that even if the second petition were considered to have tolled the clock again, Petitioner took more than seven months to file it after his first Rule 32 petition was finalized. When the seven months Hall previously used to file his first State Rule 32 petition is added to this seven month period, they equal more than twelve months which would mean if Petitioner filed his federal habeas action the minute his second State Rule 32 petition was finalized, it would be too late to toll the AEDPA limitations period.
For accounting purposes, the Court notes that Petitioner's first State Rule 32 petition became final on January 12, 1998 and that he had already used more than seven months in filing that action. So, Hall had less than five months from that day, January 12, 1998, to file a federal habeas petition. This action, however, was not filed until December 27, 1999, over a year after the State action was over.
The Court notes that although the Court is uncertain as to the exact date Petitioner's conviction became final, it would not matter given the other facts known. Specifically, even if Hall's conviction became final on the day he filed his first State Rule 32 petition and no time was considered to have lapsed for limitations purposes, because Petitioner took over a year to file this action after the first State Rule 32 petition was finalized, this action would be time-barred.
Clearly, Petitioner's habeas corpus petition was filed well beyond the one-year limitations period 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 Gwendolyn C. Mosley and against Petitioner Robert Mason Hall on all claims.