United States District Court, Middle District of Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
This case is now before the court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Curtis Earl Scarver (“Scarver”), a state inmate, on October 30, 2013. On January 26, 2009, Scarver entered a guilty plea to charges of trafficking in cocaine, possession of drug paraphernalia, and failure to affix a tax stamp in the Circuit Court of Montgomery County, Alabama. On March 12, 2009, the trial court sentenced Scarver as a habitual felony offender to life imprisonment without parole. The Alabama Court of Criminal Appeals affirmed his conviction on September 25, 2009. See Scarver v. State, 57 So.3d 209 (Ala. Cr. App. 2009) (Table). Scarver’s application for rehearing was denied on October 9, 2009. Scarver v. State, 64 So.3d 1155 (Ala. Cr. App. 2009) (Table). Scarver did not fully pursue his direct appeal and failed to seek relief from the Alabama Supreme Court. Because Scarver did not file a petition for writ of certiorari to the Alabama Supreme Court, his conviction became final by operation of law when the Alabama Court of Criminal Appeals issued the certificate of judgment on October 28, 2009.
In this petition, Scarver alleges that his constitutional rights were violated because his guilty plea was involuntary and his trial and appellate counsel rendered constitutionally ineffective assistance of counsel. Finally, Scarver contends that he was convicted under a constitutionally infirm statute.
Pursuant to the orders of this court, the respondents filed an answer (doc. # 6) in which they argue that Scarver’s petition is barred by the one-year limitation period applicable to 28 U.S.C. § 2254 petitions. See 28 U.S.C. § 2244(d)(1). The respondents contend that because Scarver’s felony murder conviction became final in October of 2009 – after the effective date of the federal statute of limitations – Scarver must have filed his § 2254 petition within one year of this conviction becoming final, exclusive of the time that any properly filed state post-conviction petition related to the conviction remained pending in state court. The respondents acknowledge that Scarver filed a state post-conviction petition challenging his murder conviction on December 2, 2010. However, they argue that this Rule 32 petition failed to toll the one-year period of limitation because it was not filed within the limitation period required by state law, and therefore, was not “properly filed” for the purpose of tolling the federal limitation period. See 28 U.S.C. § 2244(d)(2). See also Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“For purposes of determining what are ‘filing’ conditions, there is an obvious distinction between time limits, which go to the very initiation of a petition and a court’s ability to consider that petition, and the type of ‘rule of decision’ procedural bars at issue in Artuz [v. Bennett, 531 U.S. 4 (2000)], which go to the ability to obtain relief. . . . [I]t must be the case that a petition that cannot even be initiated or considered due to the failure to include a timely claim is not ‘properly filed.’ . . . For these reasons, we hold that time limits, no matter their form, are ‘filing’ conditions. Because the state court rejected petitioner’s [state post-conviction] petition as untimely, it was not ‘properly filed, ’ and he is not entitled to statutory tolling [of the limitation period] under § 2244(d)(2).”); Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1317 (11th Cir. 2006) (untimely collateral motion deemed “not ‘properly filed’ under § 2244(d), and it could not toll the federal one-year period of limitation.”)
Scarver concedes that his 2254 petition was filed beyond the one-year limitation period. See Doc. # 8 at 4. However, Scarver asserts that he is entitled to equitable tolling of the federal limitation period because his appellate counsel failed to appeal to the Alabama Supreme Court, and he is actually innocent of the crime of which he was convicted. Id. at 6.
Upon review of the pleadings and evidentiary material filed in this case and the law of this Circuit, the court concludes that no evidentiary hearing is required and that Scarver’s federal habeas petition is due to be denied for the reasons which follow.
A. Limitation Period.
Scarver’s federal habeas petition was filed in this court on October 30, 2013, and is precluded from review because Scarver filed this petition outside § 2244(d)(1)’s requisite one-year period of limitation. 28 U.S.C. § 2244(d)(1) directs that the limitation period for filing a § 2254 petition begins to run on the date when the time for seeking direct review of a challenged judgment expires.
As previously noted, by operation of law, Scarver’s conviction became final, at the latest, on October 28, 2009 – the date on which the Alabama Court of Criminal Appeals issued the certificate of judgment. The one-year limitation period contained in section 2244(d)(1)(A) thus began to run on October 29, 2009. The federal limitation period expired on October 29, 2010, unless the limitation period was tolled due to a pending state post-conviction application for relief.
B. Equitable Tolling.
Scarver argues that he is entitled to equitable tolling because his attorney did not seek certiorari review in the Alabama Supreme Court. According to Scarver, if his attorney had sought review, he would have had an additional 90 days and his Rule 32 petition filed in December, 2010 would have tolled the time for filing his habeas petition. (Doc. # 8 at 5-6). Of course, Scarver’s argument is speculative at best because it is impossible to count the days that may have been tolled if a petition for certiorari had been filed.
More importantly, however, the limitation period “may be equitably tolled” only if a petitioner can demonstrate that his late filing was the result of “extraordinary circumstances that are both beyond his control and unavoidable with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). See also, Rich v. Dep’t of Corrs. State of Fla, 317 Fed.Appx. 881, 882 (11th Cir. 2008); Steed v. Head, 219 F.3d 1298 (11th Cir. 2000). Such tolling applies only in truly extraordinary circumstances. Jones v. United States, 304 F.3d 1035, 1039-1040 (11th Cir. 2002); Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002). “The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.” Drew, ...