United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
SONJA F. BIVINS, Magistrate Judge.
Brandon Marquis Pugh, a state inmate in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition has been referred to the undersigned Magistrate Judge for a 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. The undersigned has conducted a careful review of the record and finds that no evidentiary hearing is required to resolve this case. Kelley v. Sec'y for the Dep't of Corr. , 377 F.3d 1317 (11th Cir. 2004). Following a complete review of this action, the undersigned recommends that the petition be dismissed as barred by the statute of limitations.
FINDINGS OF FACT
Pugh was charged with second-degree rape in the Circuit Court of Mobile County, Alabama (CC-07-0808), and on August 15, 2007, he entered a guilty plea. (Doc. 12-1 at 1). On the same date, Pugh was sentenced to twenty years in the State penitentiary, split with five years to be served, followed by five years probation. (Id. at 2-3). Pugh did not did not appeal his conviction and sentence. (Docs. 12 at 1, 12-1).
Pugh was released from prison to probation on January 1, 2012. (Doc. 12 at 2). Six weeks later, he was arrested for second-degree rape and second-degree sexual abuse. (Id.) Pugh's probation in CC-0700808 was revoked on September 26, 2012, and he was ordered to serve the remainder of his 2007 sentence. (Doc. 12-5 at 2). Pugh appealed his probation revocation, but the Alabama Court of Criminal Appeals affirmed the trial court's revocation decision on April 26, 2013. (Doc. 12-5 at 2). Pugh's application for rehearing was overruled on May 31, 2013. (Doc. 12-6). His petition for certiorari was denied on August 16, 2013, and a certificate of judgment issued the same day. (Doc. 12-7).
Pugh filed the first of three petitions for habeas corpus relief with this Court on June 27, 2012. See Pugh v. Kenneth Scoungers, CA 13-00360-KD-M (S.D. Ala.). In his first petition, Pugh challenged the revocation of his probation. See Pugh v. Kenneth Scoungers, CA 13-00360-KD-M, (Docs. 1, 5). While the first petition was pending, Pugh filed two more habeas petitions with this Court, the instant petition, and a third one styled Pugh v. Carla Jones, CA 13-00611-KD-N (S.D. Ala.). In both this petition, and Pugh's third petition, he seeks to challenge his August 15, 2007 conviction on the following grounds:
Complainant wasn't younger than 16 years of age nor was she incapable of consent by reason of being mentally defective.
Complainant doesn't fit the elements of Rape 2nd § 13A-6-62 and the petitioner can't be charged for that crime.
Pugh v. Carla Jones, CA 13-00611-KD-N (Doc. 1 at 4); Pugh v. Carla Jones, CA 13-00588-WS-B (Doc. 1 at 4). The Pugh v. Carla Jones, CA 13-00611-KD-N action was consolidated with the Pugh v. Kenneth Scoungers, CA 13-00360-KD-M action, which was later dismissed on the ground that Pugh's claims relating to the revocation of his probation were unexhausted. Thus, the consolidated petition was dismissed so that Pugh could properly exhaust his state remedies. Kenneth Scoungers, CA 13-00360-KD-M, (Docs. 27, 32).
In its Answer, Respondent asserts that Pugh's instant habeas petition should be denied for the following reasons: (1) Pugh failed to exhaust the two claims he now attempts to raise and due to the running of the one year statute of limitations period in Rule 32.2(2) of the Alabama Rules of Criminal Procedure, it would be futile for him to do so now and (2) Pugh's petition is barred by the one year statute of limitations set forth in Section 2244. (Doc. 12).
Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April 24, 1996 enactment of The Anti-Terrorism and Effective Death Penalty Act of 1996, § 101(Supp. II 1997) ("AEDPA"), a state prisoner seeking a federal habeas corpus remedy must file his federal petition within one year of the "conclusion of direct review or the expiration of the time for seeking such review." The Act provides that:
(d)(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 limitations 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 ...