United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BERT W. MILLING, Jr., Magistrate Judge.
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 Robert Nielsen and against Petitioner Quintez Alexander Grayson pursuant to 28 U.S.C. § 2244(d). It is further recommended that any certificate of appealability filed by Petitioner be denied as he is not entitled to appeal in forma pauperis.
Petitioner was convicted of robbery first degree in the Mobile County Circuit Court on August 28, 2008 for which he received a sentence of ninety-nine years in the state penitentiary (Doc. 1, p. 2; Doc. 13, p. 2 and Exhibit A, p. 2). Grayson did not appeal his conviction or sentence (Doc. 1, p. 3; see also Doc. 13, p. 2).
Petitioner filed a Rule 32 petition on July 21, 2009 (Doc. 13, Exhibit B, pp. 5-12) that was denied on November 19, 2010 (Doc. 13, Exhibit B, pp. 24-25). Grayson did not appeal the denial ( see Doc. 13, p. 3; see also Exhibit B, pp. 3-4).
Petitioner filed a second Rule 32 petition on June 5, 2012 (Doc. 13, Exhibit C, pp. 14-29) that was denied as successive and time-barred ( id. at pp. 58-61). The Alabama Court of Criminal Appeals affirmed the denial (Doc. 13, Exhibit G). That same Court then overruled Grayson's application for rehearing (Doc. 13, Exhibit I). On December 6, 2013, the Alabama Supreme Court denied Petitioner's petition for writ of certiorari and issued a certificate of judgment (Doc. 13, Exhibit K).
Petitioner filed a complaint with this Court on December 16, 2013 raising the following claims: (1) His attorney rendered ineffective assistance, leading to an excessive sentence; and (2) the trial court erred in not granting discovery (Doc. 1).
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. 13, pp. 5-9). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA ) that amended, in pertinent part, 28 U.S.C. § 2244. 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).
Petitioner's conviction became final on October 9, 2008, the last day that he could file an appeal of his conviction and sentence. Ala.R.App.P.4(b)(1). The next day, the AEDPA limitations clock began to run and did not stop until July 21, 2009, the day he filed his first State Rule 32 petition. AEDPA states that "[t]he 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)(2). The Court notes that 285 days had run on the AEDPA clock at the time Grayson filed his first petition.
Petitioner's first petition was denied on November 19, 2010. Grayson filed no appeal, so the judgment on his first State Rule 32 petition became final on December 31, 2010. The next day, the AEDPA limitations clock began again, running until June 5, 2012 when he filed his second Rule 32 petition. A period of 522 days ran between the closing of the first and the opening of the second Rule 32 petitions. The addition of 285 and 522 days results in a sum of 807 days on the AEDPA clock.
Judgment on Grayson's second Rule 32 petition was entered on December 6, 2013. The next day, the AEDPA clock began to run again, running for ten days before he filed this action. Ten more days on the AEDPA clock means that a total of 817 days passed on the AEDPA clock before this action was filed. Subtracting 365 days from 817 leaves 452 days on the AEDPA clock. 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)(1)(A).
Grayson has asserted, however, that the Court should consider that he has met the limitations period because his claim in this Court could not be perfected until the United States Supreme Court entered its ruling in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012). The Court notes that the AEDPA statute accommodates such an argument in that the limitations period can be found to run from "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." 28 U.S.C. § 2244(d)(1)(C).
Petitioner has argued that Lafler and its companion case, Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012), created a new rule of law in extending the right of effective assistance of counsel to the plea-bargaining process. Grayson asserts that he was sentenced to seventy-nine more years than was necessary because of his attorney's ineffectiveness (Docs. 1, 15). In explaining how this came to be, Grayson has only stated that his attorney "failed to properly ...