Opinion
CIVIL ACTION NO. 00-0216-AH-S.
June 8, 2000.
RECOMMENDATION OF MAGISTRATE JUDGE
Greg McDonald Washington, a state prisoner in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1). The petition has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2, and the Standing Order of General Reference. It is recommended that the petition be dismissed as time barred pursuant to 28 U.S.C. § 2244 (d).
Petitioner's petition challenging his April 18, 1995 conviction for attempted murder, in the Circuit Court of Mobile County, Alabama, for which he received a sentence of life, was filed subsequent to the April 24, 1996, enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended, in pertinent part, 28 U.S.C. § 2244. The procedural history of this action is not in dispute. Following Petitioner's conviction and sentence on April 18, 1995, Petitioner exhausted his direct appeal rights and a certificate of final judgment was issued on April 19, 1996. Then, more than a year later, on August 26, 1997, Petitioner filed a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Petitioner filed the instant habeas corpus petition (Doc. 1) in this Court on March 10, 2000.
By order dated May 2, 2000 (Doc. 9), Petitioner was advised of Respondent's contention that Petitioner's habeas corpus petition is due to be dismissed pursuant to 28 U.S.C. § 2244 (d)(1)(A), and Petitioner was afforded an opportunity to reply. Petitioner filed a response (Doc. 10) on May 25, 2000; however, Petitioner has not disputed the procedural history outlined in Respondent's Response (Doc. 8).
Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April 24, 1996 enactment of the AEDPA, a one year statute of limitation is applicable to an application for a writ of habeas corpus by a person in custody on a judgment of a state court.
The limitation 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 could have been discovered through the exercise of due diligence.
§ 2244(d)(1). A properly filed application for state post-conviction review tolls the one year time period. See § 2244(d)(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."); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (state post-conviction petition must meet state filing deadlines and must be "pending" in order to toll the statutory limitations period).
Because Petitioner's conviction became final, after direct appeal, on April 19, 1996, prior to the effective date of the AEDPA, the one year period of limitations applicable to this habeas corpus action ran from April 24, 1996, through April 23, 1997. See Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998); Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998) (statute of limitations in § 2244 does not expire, for convictions which became final before effective date of AEDPA, until April 23, 1997). This one year "grace period" has previously been adopted by this Court for those petitioners whose convictions became final prior to the enactment of the AEDPA to prevent an impermissible retroactive application of the law to their cases.
Petitioner's habeas corpus petition was not filed in this Court until March 10, 2000, almost three years after the grace period had expired. Because Petitioner waited until August 26, 1997, to file a petition for post-conviction relief in state court, he cannot take advantage of the tolling provision of § 2244(d)(2). See Webster v. Moore, 199 F.3d at 1259. Clearly, Petitioner's habeas corpus petition was filed well beyond the one year grace period and filed in violation of 28 U.S.C. § 2244 (d). Therefore, the petition is time barred in this Court.
Accordingly, it is the recommendation of the undersigned Magistrate Judge that Petitioner's habeas corpus petition be DISMISSED as time barred.
The attached sheet contains important information regarding objections to this Recommendation.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS 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 this 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 case 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.