United States District Court, N.D. Alabama, Northeastern Division
November 17, 2014
PAUL RAY BEAVERS, Petitioner,
WARDEN LEON FORNISS and THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents
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On December 16, 2009, Beavers's probation was revoked on both charges and the two twenty-year sentences imposed, to run concurrently.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 U.S.C. § 2254. (Doc. 1).
In his petition, Beavers contends he is entitled to the writ because he was denied proper review and consideration for resentencing under Ala. Code 15-22-54.1.
Beavers's petition is due to be denied on three independent grounds, each of which is a sufficient basis for dismissal: (1) his petition is untimely under the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act (" AEDPA"); (2) his claims were procedurally defaulted in the state court; and (3) his petition fails to state a claim for habeas relief.
A. Statute of Limitations
AEDPA amended 28 U.S.C. § 2244 to read in part, as follows:
(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 limitation 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 time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(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.
The denial of Beavers's petition under Ala. Code § 15-22-54.1 became final on September 29, 2010, when the forty-two day period for filing an appeal with the Alabama Court of Criminal Appeals lapsed. See Ala. R. App. P. 4. Accordingly, he had until September 29, 2011, to file his petition with this Court or toll the limitations period by filing a state collateral attack. The period for filing would lapse at that time absent some exception to the general rule.
Under Section 2244(d)(2), the time period during which a properly filed application for State post-conviction relief is pending does not count against the statute of limitations. An application is " properly filed" when its delivery and acceptance comply with the applicable laws and rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. Id.
On October 16, 2010, Beavers filed a direct appeal of the August 17, 2010 resentencing denial. (Doc. 5-7). However, the Alabama Court of Criminal Appeals found that the notice was untimely, (doc. 5-12); therefore, it is not considered " properly filed" under 2244(d)(2) and did not toll the statute of limitations that began running on September 29, 2010.
Beavers also filed a writ of mandamus on November 1, 2010, requesting that the Alabama Court of Criminal Appeals direct Circuit Judge John Graham to set aside his order denying Beavers resentencing under the recent amendment to Ala. Code § 15-22-54.1. (Doc. 5-8). Applications for writ of mandamus are generally not considered a proper basis for statutory tolling where they do not seek post-conviction relief from the judgment itself. See Phillips v. Culliver, No. 06-00816-KD-B, 2009 WL 3414280, at *4 n.7 (S.D. Ala. 2009) (citing numerous decisions holding mandamus and other post-conviction petitions, " which do not directly challenge the underlying conviction or sentence, do not trigger the tolling provisions of the AEDPA"). However, in this case, the mandamus petition argues the merits of the underlying resentencing petition and appears to ask the Court to order direct relief from the challenged decision as though it were an appeal. (Doc. 5-8). Such a mandamus petition, if properly filed, could potentially toll the statute of limitations. See Harris v. Dir., Virginia Dep't of Corr., 282 F.App'x 239, 243 (4th Cir. 2008) (tolling AEDPA statute of limitations where mandamus petition sought to challenge validity of judgment and complied with applicable laws regarding filing). Furthermore, there is no indication the mandamus petition was not " properly filed" under Artuz because it was dismissed for failure to state a claim, not because it did not meet the rules for filing a mandamus petition. ( See doc. 5-9). See also Harris, 282 F.App'x at 243 (finding a pro se petitioner's good faith filing of a mandamus petition tolled the statute of limitations even though, under state law, he should have filed a state habeas petition). Assuming Beavers's mandamus petition tolls the AEDPA statute of limitations, it is to no avail because the Alabama Court of Criminal Appeals ruled on his mandamus petition on November 22, 2010, tolling the limitations period, at most, by only twenty-one days and giving him until October 20, 2011, to file his petition under § 2254.
Beavers then filed a petition for writ of certiorari to the Alabama Supreme Court on December 6, 2010. (Doc. 5-10). The Alabama Supreme Court struck the petition for failure to comply with Rule 39, Ala. R. App. P., because Beavers's appeal in the Court of Criminal Appeals was still pending at the time. (Doc. 5-11). Because Beavers failed to comply with all of the state filing rules, this petition is not properly filed for purposes of statutory tolling.
On April 27, 2011, Beavers filed his first petition for writ of habeas corpus, Beavers I, doc. 1, which the court returned for deficient pleadings and gave Beavers thirty days to correct the deficiencies. Id., doc. 3. Beavers failed to submit an amended petition before the deadline and the case was dismissed without prejudice on October 25, 2011. Id., doc. 4. The pendency of a federal habeas petition, however, does not statutorily toll the statute of limitations. Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001).
The one-year limitation period is also subject to " equitable tolling" if Beavers can show " '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669). Beavers, however, has failed to show how he was prevented from filing a timely federal habeas action in this Court challenging his August 17, 2010 resentencing denial prior to expiration of the one-year period of limitations. In fact, he filed his first federal habeas petition on April 27, 2011, within the statutory limitation period but failed to follow the Court's order to amend the petition resulting in the dismissal of that case. Beavers I, docs. 1, 3, & 4. Equitable tolling is an extraordinary remedy that is typically applied sparingly, and Beavers has not established he is entitled to it.
Because Beavers had, at the latest, until October 20, 2011, to file his petition and did not file the present petition until December 9, 2011, his petition is untimely under AEDPA's one-year statute of limitations.
While actual innocence can also overcome the statute of limitations in AEDPA, McQuiggin v. Perkins,
___ U.S. ___, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013), Beavers has not asserted he is actually innocent, see Ray v. Mitchem, 272 Fed.Appx. 807, 810 (11th Cir. 2008) (stating " [t]o meet the 'threshold showing of innocence' in order to justify 'a review of the merits of the constitutional claims, ' the new evidence must raise 'sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial.' " '[A]ctual innocence" means factual innocence, not mere legal insufficiency.'") (citations omitted). Accordingly, Beavers's claims are time barred.
B. Procedural Default
Even if Beavers's claims were not barred by the statute of limitations, they are procedurally barred because " the last state court to review the claim state[d] clearly and expressly that its judgment rest[ed] on a procedural bar and that bar provide[d] an adequate and independent state ground for denying relief." Johnson v. Singletary, 938 F.2d 1166, 1173 (11th Cir. 1991) (citing Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)). The Alabama Court of Criminal Appeals explicitly denied relief on the ground the appeal was untimely. ( See doc. 5-12 at 1-2); see also Ala. R. App. P. 4. Beavers's failure to timely present his claims to the Alabama Court of Criminal Appeals resulted in a procedural default of his claims, unless he can meet one of the exceptions to that doctrine.
The procedural default doctrine does not bar habeas review
(1) where failure to consider a prisoner's claims will result in a " fundamental miscarriage of justice"; (2) where the state procedural rule was not " 'firmly established and regularly followed'"; and (3) where the prisoner had good " cause" for not following the state procedural rule and was " prejudice[d]" by not having done so.
Williams v. Alabama, No. 1:07-CV-1276-KOB-TMP, 2012 WL 1339905, at *9 (N.D. Ala. Apr. 12, 2012) (quoting Edwards v. Carpenter, 529 U.S. 446, 455, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (Breyer, J., concurring) (internal citations omitted)). Beavers's petition does not allege any facts or make any arguments to support any of these exceptions. His petition does not state any cause for, or prejudice from, his untimely filed appeal, ( see doc. 1), and, despite being given the opportunity, he did not file any response to Respondents' procedural default arguments, ( see doc. 6). Similarly, he makes no showing the explicitly stated time for appeal in Rule 4, Ala. R. App. P., is not firmly established and regularly followed. Lastly, as noted above, Beavers also presents no argument for actual innocence. Therefore, because Beavers did not give the state courts one full opportunity to resolve any constitutional issues through the State's established appellate review process and he has not shown his case falls into an exception, his claims are procedurally barred.
C. No Federal Claim
Lastly, even if his claims were not time-barred and procedurally barred, Beavers fails to state a claim for habeas relief. " [A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States ." 28 U.S.C.A. § 2254(a) (emphasis added). As a result, for a federal court to have jurisdiction over a petition for writ of habeas corpus, the petitioner must allege some violation of the United State Constitution or federal law. Beavers alleges he was " denied proper review and consideration for resentencing under Section 15-22-54.1, Code of Alabama 1975." (Doc. 1 at 5). To the extent Beavers alleges a violation of Alabama law, he fails to state a claim for habeas relief. See Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir. 1996) (" [F]ederal courts must follow the interpretation of Alabama law made by the highest court of that State absent a constitutional violation."). To the extent his petition can be read to assert a constitutional due process claim, review of his petition does not reveal allegations showing the Alabama court's denial of his petition violated any federal rights. ( See doc. 1).
Based on the foregoing, the undersigned RECOMMENDS Respondents' motion for summary dismissal be GRANTED and Beavers's petition for a writ of habeas corpus, (doc. 1), be DENIED WITH PREJUDICE.
V. Notice of Right to Object
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Objections not meeting the specificity requirement set out above will not be considered by a district judge.
A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.