United States District Court, S.D. Alabama, Southern Division
DARNELL J. PERKINS, Petitioner,
LEEPOSEY DANIELS, Respondent.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
Petitioner Darnell J. Perkins, a state prisoner presently in the custody of the respondent, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 (Doc. 1; see also Doc. 3). The respondent, through the Attorney General of Alabama, has answered (Doc. 9), raising among other defenses that Perkins's petition is barred by 28 U.S.C. § 2244(d)(1), the applicable statute of limitations. Perkins has filed a response (Doc. 11) to this Court's order (Doc. 10) to show cause why his petition should not be dismissed as time barred. In that response, Perkins moves for dismissal of his petition without prejudice, stating "he has issues that need to be resolved in the state court" ( id. ).
This matter is now before 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 Rule Governing Section 2254 Cases, and Local Rule 72.2(c)(4). And, for all the reasons explained below, it is RECOMMENDED that Perkins's motion to dismiss without prejudice be DENIED, his petition be DISMISSED with PREJUDICE, and the Court find Perkins is not entitled to a certificate of appealability and is therefore not entitled to appeal in forma pauperis.
I. Applicable Background
The uncontroverted record filed in support of the respondent's answer establishes the following timeline, applicable to disposition of the § 2254 petition.
A Mobile County jury found Perkins guilty of three counts of attempted murder and one count of first-degree burglary on June 7, 2006. On August 25, 2006, Perkins was sentenced, as a habitual felony offender, to four concurrent ninety-nine-year terms in prison. The Alabama Court of Criminal Appeals affirmed his sentence on February 16, 2007, and on June 15, 2007, the Alabama Supreme Court denied certiorari and issued a certificate of judgment. Thus, because he sought " certiorari relief in the state court of last resort, " direct review of Perkins's conviction in the state courts became final on September 13, 2007, upon expiration of the "90-day window" "to file a petition for writ of certiorari in the United States Supreme Court[.]" Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (citing SUP. CT. R. 13.1).
Perkins's first Rule 32 petition was filed November 21, 2007. It was summarily dismissed by the trial court, which dismissal the Court of Criminal Appeals affirmed, and on September 11, 2009, the Alabama Supreme Court denied certiorari and issued a certificate of judgment as to the this Rule 32 petition. Perkins filed a second Rule 32 petition on January 25, 2010, which was also summarily dismissed by the trial court. The Court of Criminal Appeals also affirmed this dismissal, and on January 7, 2011, the Alabama Supreme Court again denied certiorari and issued a certificate of judgment as to the this Rule 32 petition.
The habeas petition now before this Court was not filed until February 19, 2014, more than three years later.
A. Perkins's petition is time-barred, and he has not demonstrated entitlement to equitable tolling.
As to that, what appears to be Perkins's first, habeas petition attacking his 2006 convictions and sentence in State court, § 2244(d)(1)(A) provides that "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" and "run from"- applicable here-"the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]" Id. Of course, "[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." Id., § 2254(d)(2).
The one-year period of limitations began to run, as stated above, on September 13, 2007. While his filing of Rule 32 petitions arguably tolled the running of the statute on two occasions, the Alabama Supreme Court denied certiorari and issued a certificate of judgment as to his second (the final) Rule 32 petition on January 7, 2011, more than three years before Perkins filed the instant § 2254 petition. Thus, it is clear that the limitations period, although tolled at times while Perkins pursued post-conviction review in the State courts, expired well before Perkins filed in this Court. Cf. Crumpton v. Patterson, No. CA 11-0086-WS-C, 2011 WL 4482878, at *6 (S.D. Ala. Sept. 9, 2011) ("Petitioner's one-year period of limitations under AEDPA began to run on March 18, 1999 and ran unabated for 218 days until Crumpton filed his first Rule 32 petition in the Circuit Court of Mobile County, Alabama on October 22, 1999. Crumpton's one-year limitations period was tolled until the certificate of final judgment of affirmance was issued by the Alabama Court of Criminal Appeals on June 6, 2000 thereby ending petitioner's first collateral attack on his conviction and sentence. Crumpton filed another Rule 32 petition in the Mobile County Circuit Court some 120 days later on October 4, 2000, and even assuming that subsequent petition again tolled the one-year limitations period, petitioner's one-year limitations period certainly expired during the nearly two year lapse of time between the conclusion of Crumpton's second Rule 32 petition (that is, August 31, 2001) and the filing of his third Rule 32 petition on May 15, 2003. " (citations omitted and emphasis added)), report and recommendation adopted, 2011 WL 4482721 (S.D. Ala. Sept. 28, 2011).
B. Dismissal with prejudice is the appropriate disposition of the petition.
Realizing perhaps the procedural defectiveness of his petition, Perkins has moved to dismiss it without prejudice. ( See Doc. 11.) This request essentially invokes Rule 41(a)(2),  which "[n]umerous courts have treated [ ] as applicable to actions under Section 2254 and denied voluntary dismissal under similar circumstances." Jessup v. Daniels, No. 1:13CV607, 2014 WL ...