United States District Court, N.D. Alabama, Northeastern Division
Paul Ray Beavers, Petitioner, Pro se, Elmore, AL.
For Leon Forniss, Warden, Attorney General of the State of Alabama, Respondents: William D Little, III, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Montgomery, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
Petitioner Paul Ray Beavers (" Beavers"), a person in custody under a judgment of a court of Alabama, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for preliminary review. Upon consideration, the undersigned finds the petition is due to be DENIED.
I. Procedural History
On July 14, 2004, Beavers pled guilty in the Circuit Court of Jackson County, Alabama, to Possession of a Precursor Chemical, in violation of Ala. Code § 20-2-190(b). (Doc. 5-1). Beavers received a twenty-year sentence, with one year to be served and the remaining nineteen years suspended. (Id.) Beavers was placed on probation on July 19, 2004. (Id.)
On April 30, 2008, Beavers pled guilty in the Circuit Court of Jackson County, Alabama, to Domestic Violence in the Second Degree, in violation of Ala. Code § 13A-6-131. (Doc. 5-2). Beavers received another twenty-year sentence, with one year to be served and the remaining nineteen years to be suspended. (Id.) Beavers was placed on probation for this case on May 6, 2009. (Id.)
On December 16, 2009, Beavers's probation was revoked on both charges and the two twenty-year sentences imposed, to run concurrently. (Doc. 5-1, 5-2). He is incarcerated at the Staton Correctional Facility in Elmore, Alabama. (Doc. 1 at 1). Beavers filed a petition for reconsideration of revocation pursuant to Ala. Code § 15-22-54.1 on June 28, 2010, in the Circuit Court of Jackson County. (Doc. 5-3). The Circuit Court denied the petition on August 17, 2010. (Doc. 5-4). Beavers filed a " Response to Court's Order of August 17, 2010 and Response to the State's Arguments, " which was denied on September 29, 2010. (Doc. 5-5, 5-6). On October 16, 2010, Beavers filed a notice of appeal with the Jackson County Circuit Court, only seventeen days after the denial of his response, but sixty days after the denial of his original petition under Ala. Code § 15-22-54.1. (Doc. 5-7).
On November 1, 2010, Beavers filed a petition for writ of mandamus with the Alabama Court of Criminal Appeals. (Doc. 5-8). The Alabama Court of Criminal Appeals denied the petition on November 22, 2010, because proper review of Beavers's motion was through the previously filed appeal. (Doc. 5-9)
On December 6, 2010, Beavers filed a petition for writ of certiorari with the Alabama Supreme Court. (Doc. 5-10). On December 13, 2010, the petition was dismissed for failing to comply with Rule 39, Ala. R. App. P., as prematurely filed during the pendency of Beavers's appeal before the Alabama Court of Criminal Appeals. (Doc. 5-11).
The Alabama Court of Criminal Appeals subsequently dismissed Beavers's October 16, 2010 appeal on March 9, 2011, on the ground his appeal was untimely because Rule 24, Ala. R. Crim. P., regarding post-trial motions does not apply to post-conviction proceedings and, therefore, his response to the circuit court's order did not toll the time for appeal. (Doc. 5-12).
On April 27, 2011, Beavers filed his first petition for writ of habeas corpus in this Court. See Beavers v. Forniss, et al., 5:11-cv-02881-LSC-RRA (" Beavers I "). The Court issued a notice of deficient pleadings on September 8, 2011, and gave Beavers thirty days to correct the deficiency. Id., doc. 3. The Court then dismissed Beavers habeas petition without prejudice for lack of prosecution on October 25, 2011. Id., doc. 4.
On December 14, 2011, Beavers filed the present petition for a writ of habeas corpus pursuant to 28 ...