United States District Court, S.D. Alabama, Northern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Petitioner David Hancock ("Hancock"), an Alabama prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254 (Doc. 1). The Respondent has timely filed an Answer (Doc. 7) to the petition. Upon the undersigned's review of the Answer, Hancock was ordered to respond in writing and "show cause why his petition for habeas relief ought not to be dismissed as untimely under 28 U.S.C. § 2244(d), as stated by the Respondent." (Doc. 12 at 6). Hancock has filed his response (Docs. 13-15) to the "show cause" order. The petition has been taken under submission and is ripe for disposition. ( See Doc. 12).
This matter has been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, and S.D. ALA Local Rule 72.2(c)(4). Upon consideration, and for the reasons stated herein, it is RECOMMENDED that Hancock's habeas petition (Doc. 1) be DISMISSED with prejudice as time-barred. Should this recommendation be adopted, it is further RECOMMENDED that Hancock be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.
I. Applicable Background
The record before the Court in this action reflects that on May 17, 2007, in the Circuit Court of Perry County, Alabama, Hancock was found guilty by a jury of the "lesser included offense of manslaughter." (Doc. 7-1 at 8). On August 8, 2007, he was sentenced to 18 years imprisonment. (Doc. 7-1 at 9). The Alabama Court of Criminal Appeals affirmed Hancock's conviction in an unpublished opinion issued on February 20, 2009. (Doc. 7-2); David Hancock v. State, 46 So.3d 973 (Table) (Ala.Crim.App.2009). On March 11, 2009, the Court of Criminal Appeals issued a certificate of judgment and ordered that Hancock's application for rehearing be stricken as untimely filed. (Docs. 7-3, 7-4). No appeal to the Alabama Supreme Court was taken.
Hancock filed a motion for relief pursuant to Alabama Rule of Criminal Procedure 32 on February 17, 2010, asserting, inter alia, prosecutorial misconduct, lack of jurisdiction, and ineffective assistance of counsel. (Doc. 7-6 at 8; see also, Doc. 8 at 3-4). The trial court denied the petition on April 27, 2011. (Doc. 7-5 at 2). On September 26, 2011, the Alabama Court of Criminal Appeals dismissed Hancock's appeal as untimely filed and issued a certificate of judgment. (Doc. 7-7); David Hancock v. State, 114 So.3d 177 (Table) (Ala.Crim.App.2011).
Hancock filed a second Rule 32 petition on January 20, 2012, pursuant to Rule 32.1(f) of the Alabama Rules of Criminal Procedure, arguing that he failed to timely appeal the denial of his first Rule 32 petition through no fault of his own. (Doc. 7-9). He specifically argued that, "[b]y the time that power was restored at the Limestone Correctional Facility [following a severe storm with tornado damage], the lockdown status was lifted and the law library was reopened to the general prison population, the time for filing a timely notice of appeal... had expired." (Doc. 7-9 at 11). Although Hancock disputes (Doc. 8 at ¶ 9) some of the respondent's allegations regarding the State's response to this Rule 32.1(f) motion (Doc. 7 at ¶ 3), he does not dispute that it is still pending and has filed as an exhibit the State's response filed on March 8, 2012 (Doc. 8 at 53-54).
On March 22, 2013,  Hancock filed the instant habeas petition raising claims of ineffective assistance of trial and appellate counsel and claims of violation of due process rights when his appellate counsel failed to send him a copy of the record on direct appeal and when the circuit court delayed 14 months in holding a hearing on Hancock's second Rule 32 petition. (Docs. 7 at ¶ 4; Doc. 1 at pp 38-44).
As Hancock's habeas petition was filed after April 24, 1996, it is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2241 et seq. ("AEDPA"). See, e.g., San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). The Respondent argues that the one-year statute of limitations period set forth in AEDPA, 28 U.S.C. § 2244(d)(1), expired for Hancock on October 18, 2011, 22 days following the issuance of a certificate of judgment by the Alabama Court of Criminal Appeals affirming the denial of Hancock's first Rule 32 petition. The Respondent further argues that Hancock's second Rule 32 petition did not toll the running of the statute of limitations because it was not filed until January 20, 2012, after the limitations time had already expired. The Respondent also contends that Hancock has failed to articulate any claim warranting equitable tolling of the applicable one-year statute of limitations and that his claims are procedurally defaulted.
II. The Habeas Petition is Untimely
"AEDPA imposes a one-year statute of limitations on all federal habeas corpus petitions." San Martin, 633 F.3d at 1265 (citing 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply to an application for a writ of habeas corpus....")).
"This rule serves the well-recognized interest in the finality of state court judgments' and reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.'" Id. (citing Duncan v. Walker, 533 U.S. 167, 179 (2001)). As relevant to this action, the statute specifically provides: "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." § 2244(d)(1)(A).
In Alabama, "[i]n all criminal cases except pretrial appeals by the state, the filing of an application for rehearing in the Alabama Court of Criminal Appeals is a prerequisite to certiorari review by the Alabama Supreme Court." Ala. R. App. P. 40(d)(1). See also Ala. R. App. P. 39(c)(1). As applicable to this action, for review by a petition for a writ of certiorari of a decision of the Alabama Court of Criminal Appeals, "[t]he petition for the writ of certiorari shall be filed with the clerk of the Supreme Court... within 14 days (2 weeks) of the decision of the Court of Criminal Appeals on the application for rehearing..." Ala. R. App. P. 39(c)(2). Hancock's application for rehearing in his direct appeal was stricken as untimely by the Alabama Court of Criminal Appeals on Wednesday, March 11, 2009. (Doc. 7-4). As such, rather than the date the Court of Criminal Appeals issued its certificate of judgment (as Respondent argues), Hancock's criminal judgment became final, and AEDPA's one-year statute of limitations began running, on Thursday, March 26, 2009, the day after the expiration of fourteen days following "the decision of the Court of Criminal Appeals on [Hancock's] application for rehearing." Ala. R. App. P. 39(c)(2). See also Ala. R. App. P. 26(a) ("In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period extends until the end of the next day that is not a Saturday, Sunday, or legal holiday or, when the act to be done is the filing of a document in an appellate court, a day on which weather or other conditions have made the office of the clerk of the court inaccessible, in which event the period runs until the end of the next day that is not one of the aforementioned days.").
"The AEDPA clock continues to run until the individual seeking review files a state motion for post-conviction relief. Once the petitioner files a motion for post-conviction relief in state court, the AEDPA clock stops." San Martin, 633 F.3d at 1266 (citing 28 U.S.C. § 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."). By the time Hancock filed his first motion for relief under Alabama Rule of Criminal Procedure 32 on Wednesday, February 17, 2010,  three hundred twenty-eight (328) days had run on his AEDPA clock, leaving him only thirty-seven (37) days in which to file a federal habeas petition.
On Wednesday, April 27, 2011, the state circuit court entered an order denying Hancock's first Rule 32 petition. (Doc. 7-5 at 2). Alabama Rule of Criminal Procedure 32.10(a) states: "Any party may appeal the decision of a circuit court according to the procedures of the Alabama Rules of Appellate Procedure to the Court of Criminal Appeals upon taking a timely appeal as provided in Rule 4, Alabama Rules of Appellate Procedure..." As applicable here, Alabama Rule of Appellate Procedure 4(a) states that "in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal... shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from..."
Accordingly, Hancock had until Wednesday, June 8, 2011, in which to file his notice of appeal in his first Rule 32 proceeding. However, Hancock filed his notice of appeal on August 9, 2011,  and the Court of Criminal Appeals dismissed the appeal as untimely on Monday, September 26, 2011. "A state post-conviction application is pending' under § 2244(d)(2) both when it actually is being considered by the state habeas court and during the gap of time between the state habeas court's initial disposition and the petitioner's timely filing of a petition for review at the next level." Wade v. Battle, 379 F.3d 1254, 1262 (11th Cir. 2004) (citing Carey v. Saffold, 536 U.S. 214, 220, 226 (2002)). See also Pace v. DiGuglielmo, 544 U.S. 408, 410, 413, 417 (2005) ("This case requires us to decide whether a state postconviction petition rejected by the state court as untimely nonetheless is properly filed' within the meaning of § 2244(d)(2). We conclude that it is not... On petitioner's theory, a state prisoner could toll the statute of limitations at will simply by filing untimely state postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay... Because the state court rejected petitioner's PCRA petition as ...