Opinion
Civil Action 00-0938-CB-M.
February 22, 2001.
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 Charlie Jones and against Petitioner Robert Hawkins pursuant to 28 U.S.C. § 2254(d).
Petitioner was convicted of murder in the Circuit Court of Mobile County on March 8, 1983 for which he received a life sentence in the state penitentiary pursuant to the Alabama Habitual Felony Offender Act (Doc. 12, Exhibit 1, C. 2-3). Hawkins appealed the conviction, which was affirmed by the Alabama Court of Criminal Appeals. Hawkins v. State, 443 So.2d 1312 (Ala.Crim.App. 1983). The certificate of final judgment was issued on January 13, 1984 (Doc. 12, Exhibit 1, C. 3). Following that certificate, Petitioner filed an error coram nobis petition and four different Rule 32 petitions, all of which were denied initially and on appeal ( see Doc. 12, pp. 2-3; Exhibits 1-3).
Petitioner filed a complaint with this Court on October 19, 2000 raising the following claims: (1) The trial court did not have jurisdiction to convict and sentence him; (2) Petitioner was illegally sentenced; (3) and Petitioner's trial and appellate attorneys rendered ineffective assistance (Doc. 1).
Respondent has answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Docs. 12, 15). 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). The Eleventh Circuit Court of Appeals held that the one-year limitations period would begin to run on that date, April 24, 1996, for potential habeas petitioners whose convictions had already become final by way of direct review. Goodman, 151 F.3d at 1337; Wilcox v. Florida Dept. off Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998). In other words, the Eleventh Circuit Court of Appeals established a "grace period" through April 23, 1997 so that federal and state criminal defendants would not lose the opportunity to seek federal habeas review.
Petitioner's conviction became final on January 13, 1984, the day on which the certificate of final judgment on his conviction was issued. As such, Hawkins's conviction became final prior to the effective date of the AEDPA.
Petitioner's habeas corpus petition was not filed in this Court until October 19, 2000, more than three year after the grace period had expired. Petitioner's most recent Rule 32 petition was filed in state court on May 6, 1998, more than a year after the grace period had expired (see Doc. 12, p. 2; Exhibit 1). The Eleventh Circuit Court of Appeals has held that "[a] state court petition that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1299 (11th Cir. 2000). Petitioner's Rule 32 petition was filed too late to toll the statute.
Clearly, Petitioner's habeas corpus petition was filed well beyond the one-year grace period and filed in violation of 28 U.S.C. § 2254 (d). The Court finds that Petitioner (see doc. 14) 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 Charlie Jones and against Petitioner Robert Hawkins pursuant to 28 U.S.C. § 2254(d).
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed De novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.