Opinion
Civil Action 00-0090-BH-L
April 16, 2001
REPORT AND RECOMMENDATION
Trung Van Ho, a state prisoner currently in the custody of the respondent, filed his petition for writ of habeas corpus and brief in support thereof on February 1, 2000. (Docs. 1, 2). The petition challenges his May 3, 1995 conviction in the Circuit Court of Mobile County for robbery in the first degree and burglary in the first degree for which he was sentenced to twenty years each with the sentences to run concurrently. (Docs. 1, 10). After service of the petition, respondent filed an answer on April 7, 2000. (Doc. 10).
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the petition. 28 U.S.C. § 636 (b)(1)(B), 28 U.S.C. foll. § 2254, Rule 8(b)(1) and Local Rule 72.2(c)(4). The undersigned finds that a hearing is not necessary. Local Rule 72.1(c). After a complete review of this action, the undersigned determines that the petition should be dismissed because it is barred by the statute of limitations.
FINDINGS OF FACT
1. On May 3, 1995, petitioner was convicted in the Circuit Court of Mobile County of robbery in the first degree and burglary in the first degree pursuant to ALA. CODE § 13A-8-41 and § 13A-7-5 (1975), respectively. (Doc. 1, Doc. 10, Exhibit 1). He was sentenced to twenty years in prison for each conviction with the sentences to run concurrently. (Id.). Petitioner appealed his convictions to the Alabama Court of Criminal Appeals.
2. On December 29, 1995, the Alabama Court of Criminal Appeals affirmed his convictions in a memorandum opinion. (Doc. 10, Exhibit 4). See Ho v. State, 682 So.2d 528 (Ala.Crim.App. 1995) (Table) (No. CR-94-1677). The petitioner did not appeal to the Alabama Supreme Court. (Doc. 1, P. 4).
3. On January 16, 1996, a certificate of judgment was entered by the Court of Criminal Appeals. (Doc. 10, Exhibit 7). A certificate of judgment does not issue until the petitioner has exhausted his appeal or the time to do so has lapsed. See Ala.R.App.P. 41(a)
4. On October 28, 1997, petitioner filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of Alabama which was dismissed without prejudice for failure to exhaust on February 26, 1998 (Doc. 10). See Trung v. Hightower, CV-97-0985-AH-C.
The report and recommendation for dismissal addresses the petitioner's failure to exhaust his state court remedies. However, the answer of the respondent also asserts that the petition was filed beyond the statute of limitations. The court did not address this assertion in its order. (CV 97-0985-AH-C, Doc. 9).
5. On January 15, 1998, petitioner filed his first Rule 32 petition in the Circuit Court of Mobile County, Alabama. (Doc. 10, Exhibits 5 6). Judgment was entered on March 24, 1999 denying the petition. (Doc. 10, Exhibit 6). Petitioner did not appeal.
6. On July 16, 1999, petitioner filed his second Rule 32 petition in the Circuit Court of Mobile County, Alabama. (Id.). Judgment was entered on September 3, 1999 wherein petitioner's second petition was dismissed by written order. ( Id.). Petitioner appealed the dismissal. (Id.). On December 3, 1999, the denial of his second Rule 32 petition was affirmed by the Alabama Court of Criminal Appeals. (Doc. 10, Exhibit 7).
The petitioner did not indicate that he appealed the Rule 32 judgment to the Alabama Supreme Court, nor is there any evidence in the record that an appeal (or writ for certiorari) was taken. (Doc. 1, p. 5).
CONCLUSIONS OF LAW
For the reasons stated herein, the undersigned recommends that the petition be dismissed as barred by the one-year statute of limitations "grace period" extending from April 24, 1996 through April 23, 1997, as established by the Eleventh Circuit Court of Appeals in Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998) and Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), effective April 24, 1996, established a one-year statute of limitations for state prisoner petitions for federal habeas corpus filed under 28 U.S.C. 2254. Codified as 28 U.S.C. § 2244 (d), the statute provides,
(d)(1) 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 limitations 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
(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.28 U.S.C. § 2244 (d) (West 2001).
The AEDPA became effective on April 24, 1996. Goodman, 151 F.3d at 1336. 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, 158 F.3d at 1211. 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 16, 1996, the day on which the certificate of judgment on his direct appeal was issued. As such, petitioner's conviction became final prior to the effective date of the AEDPA, April 24, 1996, and therefore petitioner had until April 23, 1997, to seek federal habeas review.
Petitioner's present habeas corpus petition was not filed in this Court until February 1, 2000, almost three years after the grace period had expired on April 23, 1997. Petitioner filed his first Rule 32 petition in state court on January 15, 1998, and his second Rule 32 petition in state court on July 16, 1999. Both filings occurred after the grace period had expired on April 23, 1997, thus none tolled the statute of limitations. 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).
Even if the court construed petitioner's October 28, 1997 filing of his first federal habeas corpus petition as the date for a statute of limitations inquiry, petitioner is still untimely since that petition was filed almost six months after the statute of limitations ran.
However, before recommending dismissal, the undersigned must ascertain whether the petitioner has pled extraordinary circumstances which require a contrary conclusion. As the Eleventh Circuit has recently stated,
Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore, it permits equitable tolling `when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.' Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). Equitable tolling is an extraordinary remedy which is typically applied sparingly. See Irvin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The undersigned has reviewed the pleadings and finds that petitioner has offered no explanation for the untimely filing of the federal habeas petition. The petitioner has offered no extraordinary circumstances to justify the out-of-time adjudication of his petition, filed nearly three years after the statute of limitations had run without being tolled by a properly filed Rule 32 petition. Where the petitioner has provided no basis for equitable tolling of the extended "grace period," the undersigned must recommend that this case be dismissed as time-barred.
CONCLUSION
For the reasons stated herein, the undersigned recommends that this petition for writ of habeas corpus be dismissed as time-barred pursuant to 28 U.S.C. § 2244 (d) and that judgment be entered in favor of respondents and against petitioner pursuant to 28 U.S.C. § 2244 (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). 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, in part, 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. Opposing party's response to the objection . Any opposing party may submit a brief opposing the objection within ten (10) days of being served with a copy of the statement of objection. Fed.R.Civ.P. 72; SD ALA LR 72.4(b).
3. 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.