United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, Magistrate Judge.
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Petitioner James Bonds on April 19, 2012. Petitioner challenges his conviction for capital murder entered against him by the Circuit Court for Houston County, Alabama. A jury convicted Petitioner of this crime on October 10, 2002, made a capital offense because it was committed during a robbery. The jury, by a vote of 10-2, recommended that Petitioner be sentenced to death. On November 12, 2002, the trial court imposed a death sentence on Petitioner. Petitioner, by and through counsel, filed notice of appeal on November 26, 2002. During the pendency of the appeal, the Supreme Court decided Roper v. Simmons, 543 U.S. 551 (2005), which holds that under the Eighth and Fourteenth Amendment the death penalty may not be imposed on offenders under the age of 18 when they committed their crimes. Because of the Roper decision, the Alabama Court of Criminal Appeals remanded Petitioner's case to the trial court directing that court to vacate Petitioner's death sentence and resentence him to life imprisonment without the possibility of parole because he was sixteen years of age when he committed his offense and not eligible for the death penalty under Roper. See Bonds v. State, 937 So.2d 112 (Ala.Crim.App.2005). The trial court subsequently sentenced Petitioner to life imprisonment without the possibility of parole. On June 17, 2005, on return to remand, the appeals court affirmed Petitioner's conviction and sentence. The Alabama Supreme Court denied Petitioner's request for certiorari review and entered a certificate of judgment on February 17, 2006. Doc. No. 15, Exh. RX-2.
Pursuant to the orders of this court, Respondents filed an answer in which they argue that the instant habeas 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). Respondents contend that because Petitioner's conviction became final in 2006-after the effective date of the statute of limitations - he must have filed his § 2254 petition within a year of his conviction becoming final, exclusive of the time that any properly filed state post-conviction petition was pending in the state courts. Respondents concede that Petitioner filed a state post-conviction petition on February 16, 2007, and a second post-conviction petition on August 26, 2011. They maintain, however, that even allowing a tolling of the limitation period during the pendency of these Rule 32 petitions, the limitation period expired prior to Petitioner filing the present federal habeas petition. Doc. No. 15 at 26-32; see also Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.); Tinker v. Moore, 255 F.3d 1331, 1333-1335. n.4 (11th Cir. 2001).
Based on Respondents' arguments, the court entered an order advising Petitioner he had failed to file the present federal habeas petition within the one-year limitation period established by 28 U.S.C. § 2241(d)(1). Doc. No. 20. The order gave Petitioner an opportunity to show cause why his petition should not be barred from review by this court. Id. Petitioner filed no response. Upon review of the pleadings filed by the parties and applicable federal law, the court concludes that Petitioner's § 2254 petition for writ of habeas corpus relief is due to be denied as it was not filed within the requisite one-year period of limitations.
A. The Federal Period of Limitation
The Anti-Terrorism and Effective Death Penalty Act of 1996 became effective on April 24, 1996 and amended the habeas corpus statute to include a one-year period of limitation on petitions filed under 28 U.S.C. § 2254. This limitation period is codified at 28 U.S.C. § 2244(d) and provides that:
(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 ...