United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, Chief Magistrate Judge.
I. INTRODUCTION AND PROCEDURAL HISTORY
This case is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Elbert Sims ["Sims"], a state inmate, on April 2, 2012. In this petition, Sims challenges a conviction for murder imposed upon him by the Circuit Court of Chilton County, Alabama in April, 2001.
Sims filed an appeal of his murder conviction in which he argued that the State failed to present sufficient evidence of his intent to kill the victim and did not adequately refute the inference of self-defense. The Alabama Court of Criminal Appeals issued a memorandum opinion on December 14, 2001, affirming Sims' conviction. Sims filed a petition for writ of certiorari which the Alabama Supreme Court denied on March 22, 2002, and the Alabama Court of Criminal Appeals issued the certificate of judgment on this same date. See Respondents' Exhibit B - Doc. No. 7-2 at 2. Sims did not seek further review of his murder conviction and the conviction therefore became final by operation of law on June 20, 2002.
Pursuant to the orders of this court, the respondents filed an answer in which they argue that the instant federal habeas petition is barred by the one-year period of limitation applicable to 28 U.S.C. § 2254 petitions. 28 U.S.C. § 2244(d)(1). The respondents contend that because Sims' murder conviction became final in 2002 - after the effective date of the statute of limitations - Sims 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 action related to the conviction remained pending in the state courts. The respondents acknowledge that Sims filed a state post-conviction petition under Rule 32, Alabama Rules of Criminal Procedure, on April 19, 2011. The Alabama Court of Criminal Appeals determined that the Rule 32 petition was not timely filed. Respondents' Exhibit B - Doc. No. 7-2 at 2-3 ("Sims's petition was filed over nine years after his conviction and sentence were final, long after the [one-year period of] limitations... applicable to his [Rule 32 petition] had expired."). Thus, the Rule 32 petition failed to toll the federal limitations period because Sims filed the Rule 32 petition after expiration of the limitations period directed by state law and, therefore, the petition was not "properly filed" as required by the provisions of 28 U.S.C. § 2244(d)(2) for purposes of tolling its one-year period of limitation. Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 1814 (2005) ("For purposes of determining what are filing' conditions, there is an obvious distinction between time limits, which go to the very initiation of a petition and a court's ability to consider that petition, and the type of rule of decision' procedural bars at issue in Artuz [v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000)], which go to the ability to obtain relief.... [I]t must be the case that a petition that cannot even be initiated or considered due to the failure to include a timely claim is not properly filed.'... For these reasons, we hold that time limits, no matter their form, are filing' conditions. Because the state court rejected petitioner's [state post-conviction] petition as untimely, it was not properly filed, ' and he is not entitled to statutory tolling [of the limitation period] under § 2244(d)(2)."); Sweet v. Secretary, Department of Corrections, 467 F.3d 1311, 1317 (11th Cir. 2006) (untimely collateral motion deemed "not properly filed' under § 2244(d), and it could not toll the federal one-year period of limitation."). In addition, Sims' Rule 32 petition was filed after expiration of the federal limitation period. Consequently, the petition did not statutorily toll the one-year period of limitation because it was not "pending" as required by the directives of 28 U.S.C. 2244(d)(2) to warrant statutory tolling. Alexander v. Secretary, Dept. of Corrections, 523 F.3d 1291, 1294 (11th Cir. 2008); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), cert. denied, 531 U.S. 991 , 121 S.Ct. 481, 148 L.Ed.2d 454 (2000) ("[E]ven properly filed' state-court petitions must be pending' [during the one-year period of limitation] in order to toll the limitations period. A state court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled."); Moore v. Crosby, 321 F.3d at 1381 ("While a properly filed' application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once the limitations period has expired. In other words, the tolling provision does not operate to revive the one-year limitations period if such period has expired."); Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001) ("[A] properly filed petition in state court only tolls the time remaining within the federal limitation period."); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), cert. denied, 531 U.S. 991 , 121 S.Ct. 481, 148 L.Ed.2d 454 (2000).
The respondents also maintain that Sims is not entitled either to statutory or equitable tolling of the limitation period for the amount of time necessary to render the instant petition timely filed. Respondents' Answer - Court Doc. No. 7 at 6. With respect to Sims' assertion that he is actually innocent because his intoxication/drug use rendered him incapable of forming the requisite intent to commit murder, the respondents argue that this claim is one of legal innocence, not factual innocence, a claim which fails to establish actual innocence under the standard established by federal law. Id. at 8; Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995). The respondents further argue that Sims' claim of innocence merely represents a theory of defense which was available to him at the time of his trial and, therefore, is not newly discovered evidence of actual innocence necessary to exclude application of the time bar. Respondents' Answer - Court Doc. No. 7 at 8.
Under the circumstances set forth herein, the one-year period of limitation mandated by § 2244(d)(1)(A) began to run on June 21, 2002 and ran uninterrupted until it expired on June 23, 2003. Sims filed his federal habeas petition in this court on April 2, 2012. The respondents maintain that Sims' federal habeas petition is due to be dismissed as untimely because it was filed almost nine years after expiration of the applicable limitations period. Respondents' Answer - Doc. No. 7 at 5-8.
Based on the foregoing, the court entered an order advising Sims that he failed to file his federal habeas petition within the one-year limitation period established by 28 U.S.C. § 2241(d)(1). Order of April 26, 2012 - Doc. No. 9. This order also provided Sims an opportunity to show cause why his habeas petition should not be barred from review by this court as untimely filed. In his response to this order, Sims asserts that "[i]n 2001 [counsel] told me [he] appealed my conviction. Me and [counsel] had contact over the phone until 2003. [Subsequent] letters [sent to counsel] were returned to sender." Petitioner's Response - Doc. No. 9 at 3. Sims maintains that he then sent letters to the circuit court and trial judge from 2003 until 2009 seeking information but received no response. Id. Sims argues that he should be allowed equitable tolling of the limitation period until he filed his initial post-conviction petition because, although he remained in contact with counsel through 2003, counsel did not advise him of the status of his appeal. Id. Sims also seeks equitable tolling from 2003 until 2009 due to the trial court's alleged failure to respond to letters seeking information regarding his case. Id. Sims does not allege that he undertook any other action regarding his case during this period of time, but asserts that in 2009 he "started researching [the] issues in the Law Library" in preparation to file post-conviction challenges to his murder conviction. Id. Sims maintains that counsel "did not [file an] appeal... so the Petitioner does show to this court an Extraordinary Circumstance prevented him from filing an appeal." Id. at 2. Finally, Sims contends that the action or inaction of trial counsel during the direct appeal process allowed the federal limitations period to expire. Id. at 3.
Upon review of the pleadings filed by the parties, the undisputed state court record and applicable federal law, the court determines that no evidentiary hearing is required, Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts, and concludes that the present habeas petition is due to be denied as Sims failed to file the petition within the applicable one-year period of limitation.
A. Actual Innocence - Gateway to Excuse Time Bar
Sims maintains that he is actually innocent of murder because his intoxication and use of pain medication on the day of the offense prevented him from forming the requisite intent for murder. Sims argues that, based on his lack of intent to kill the victim, the crime he committed constituted only manslaughter. Sims also asserts that he is actually innocent because his confession was inadmissible and his attorney provided ineffective assistance in not seeking suppression of his statement.
"[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass [to obtain federal review of a habeas petition filed] after expiration of the statute of limitations.... [T]enable actual-innocence gateway pleas are rare: [A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror [or the judge accepting his plea], acting reasonably would have [found] him guilty beyond a reasonable doubt.' [ Schlup v. Delo, 513 U.S. 298, 339 (1995)]; [ House v. Bell, 547 U.S. 518, 538 (2006)] (emphasizing that the Schlup standard is demanding' and seldom met). And in making an assessment of the kind Schlup envisioned, the timing of the [petition]' is a [relevant] factor bearing on the reliability of th[e] evidence' purporting to show actual innocence. Schlup, 513 U.S. at 332, 115 S.Ct. [at] 851.... [A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a petitioner's part... as a factor in determining whether actual innocence has been shown." McQuiggin v. Perkins, ___ U.S. ___, at ___, 133 S.Ct. 1924, 1928 (2013).
The actual innocence exception applies where a petitioner establishes that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup v. Delo, supra . "To establish actual innocence, [a habeas petitioner] must demonstrate that... it is more likely than not that no reasonable juror would have convicted him.' Schlup v. Delo, 513 U.S. 298, 327-328, 115 S.Ct. 851, 867-868, 130 L.Ed.2d 808 (1995)." Bousley v. United States, 523 U.S. 614, 623 (1998). "[T]he Schlup standard is demanding and permits review only in the "extraordinary'" case." House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 2077 (2006). Thus, "[i]n the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of defaulted [and/or time barred] claims." 547 U.S. at 537 , 126 S.Ct. at 2077. "It is important to note in this regard that actual innocence' means factual innocence, not mere legal insufficiency. See Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 2518-2519, 120 L.Ed.2d 269 (1992)." Bousley, 523 U.S. at 623-624; Doe v. Menefee, 391 F.3d 147, 162 (2nd Cir. 2004) ("As Schlup makes clear, the issue before [a federal district] court is not legal innocence but factual innocence."). Schlup observes that "a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare.... To be credible, such a claim requires petitioner to ...