United States District Court, Middle District of Alabama
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE
This case is before the court on a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Alabama inmate Jerry Hammond (“Hammond”) on October 23, 2012. (Doc. No. 1.) Hammond presents claims challenging the validity of his conviction and resulting sentence, entered in 2003 by the Houston County Circuit Court, for the offense of capital murder. Hammond was sentenced to life imprisonment without the possibility of parole. The respondents argue (Doc. No. 15) that Hammond’s habeas petition is time-barred by the one-year limitation period applicable to § 2254 petitions. See 28 U.S.C. § 2244(d).Upon review of the pleadings and evidentiary materials filed in this case and the applicable law, the court concludes that no evidentiary hearing is required and that Hammond’s petition should be denied as untimely.
Title 28 U.S.C. § 2244(d) states:
(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 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.
(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). Section 2244(d)(1)(A) 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. See 28 U.S.C, § 2244(d)(1)(A).
Hammond was convicted of capital murder, a violation of § 13A-5-40(a)(2), Ala. Code 1975, on November 21, 2003, following a jury trial in the Houston County Circuit Court. (Resp. Ex. 6.) For that conviction, the trial court imposed a sentence of life in prison without the possibility of parole. (Id.) On August 13, 2004, on direct appeal, Hammond’s conviction and sentence were affirmed by the Alabama Court of Criminal Appeals. (Id.) Hammond filed an application for rehearing, which was overruled on September 3, 2004. (Resp. Ex. 7.) Hammond did not petition for certiorari review with the Alabama Supreme Court. On September 22, 2004, the Court of Criminal Appeals issued its certificate of judgment. (Resp. Ex. 8.)
Because Hammond did not seek certiorari review in the state supreme court, he was not entitled to the additional 90 days for seeking certiorari review in the United States Supreme Court; therefore, his conviction became final, for federal habeas purposes, on September 22, 2004, the date on which the Alabama Court of Criminal Appeals issued its certificate of judgment. See Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir. 2006); Ala.R.App.P. 40(c). The one-year period for filing his federal petition commenced on that date. See 28 U.S.C. § 2244(d)(1)(A). Thus, absent ...