Opinion
Civil Action 00-0279-RV-M
June 16, 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 Charlie Jones and against Petitioner William R. Nesbitt pursuant to 28 U.S.C. § 2254(d).
Petitioner was convicted of burglary third degree, receiving stolen property in the first degree, and possession of burglary tools in the Circuit Court of Baldwin County on September 14, 1994 for which he received a life sentence in the state penitentiary on each count, to be served concurrently (Doc. 1). Nesbitt appealed the conviction, which was affirmed by the Alabama Court of Criminal Appeals in a memorandum opinion on November 9, 1995 (Doc. 20, p. 7 and Exhibit A). The certificate of final judgment was issued on September 6, 1996 (Doc. 20, p. 7 and Exhibit B).
Petitioner filed a Rule 32 petition on February 2, 1998 ( see Doc. 20, Exhibit C, p. 1). 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 (Doc. 20, Exhibit C).
Petitioner filed a complaint with this Court on April 4, 2000 raising the following claims: (1) He was subjected to an illegal search and seizure; (2) the indictment in his case was defective; (3) the charges against Petitioner were improperly consolidated into one trial; (4) the prosecutor knowingly used hearsay and perjured testimony to convict him; (5) he was improperly sentenced under the habitual offender statute; (6) Petitioner's attorney rendered ineffective assistance; (7) the evidence was insufficient to convict him; (8) the state courts denied him due process in handling his state Rule 32 petition (Docs. 2, 19).
Before proceeding to the resolution of this petition, the Court notes that Nesbitt has filed numerous additional pleadings which will first be addressed. Petitioner's Notice to the Court is NOTED (Doc. 15). Petitioner's Limited Objection to Respondent's Motion for Extension of Time is MOOT as Respondent has filed his Response (Doc. 16). Petitioner's Instanter Motion for Ruling as to Jurisdiction is GRANTED (Doc. 18). Petitioner's Motion to Amend his Petition is GRANTED (Doc. 19). Petitioner's Answer to Respondent's Return and Memorandum is NOTED (Doc. 23).
The pleading' is entitled "Supplemental Claims in the Present Cause" (Doc. 19). The Court understands Petitioner to be requesting Leave to File a Motion to Amend which is GRANTED.
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. 21). 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 (Doc. 13). 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. § 2244(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. of 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 September 6, 1996, the day on which the certificate of judgment was entered on his conviction. Under AEDPA, Nesbitt had until September 6, 1997 to file a federal habeas petition.
Petitioner's habeas corpus petition was not filed in this Court until April 4, 2000, more than thirty months years after the grace period had expired. Petitioner had filed a Rule 32 petition in state court on February 2, 1998, nearly five months after the grace period had expired. 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 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 William R. Nesbitt on all claims.