United States District Court, N.D. Alabama, Southern Division
November 17, 2014
MARLAND D. WILLIAMS, Petitioner,
STATE OF ALABAMA and THE ATTORNEY GENERAL FOR THE STATE OF ALABAMA, Respondents
Marland D. Williams, Petitioner, Pro se, Elmore, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
Petitioner Marland D. Williams (" Williams" or " Petitioner"), a person in custody under a judgment of a court of Alabama, filed a 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 dismissed because it is barred by the applicable statute of limitations.
I. Procedural History
On December 7, 2008, a jury convicted Williams of violating Alabama Code § § 13A-6-66 and 13A-6-63 in the Circuit Court of Jefferson County, Alabama. (Doc. 1 at 1). Williams received a ten-year sentence and a life sentence as a result of the conviction. (Id.). Williams directly appealed, and the Alabama Court of Criminal Appeals affirmed his conviction on February 23, 2007. (Id. at 2). Williams did not seek a writ of certiorari with the Alabama Supreme Court. (Id.). A certificate of judgment was issued on or about March 14, 2007. ( See http://v2.alacourt.com, CC-2005-002696.00).
On or about February 13, 2008, Williams filed a Rule 32 post-conviction petition in the Circuit Court of Jefferson County. (Doc. 1 at 4) (CC-2005-002696.60). The Circuit Court denied Williams' Rule 32 petition, and Williams appealed. (Doc. 1 at 4). The Alabama Court of Criminal Appeals affirmed the Circuit Court's dismissal of the petition on September 25, 2009. (See http://v2.alacourt.com, CC-2005-002696.60). A certificate of judgment was issued on or about October 14, 2009. (Id.). There is no indication Williams pursued rehearing or a writ of certiorari.
Williams filed a second Rule 32 petition on March 27, 2013. (Doc. 1 at 6). (CC-2005-002696.61). After dismissal by the Circuit Court, ( id .), the Alabama Court of Appeals affirmed the dismissal on December 9, 2013. ( See http://v2.alacourt.com, CC-2005-002696.61). The Alabama Court of Criminal Appeals overruled Williams' application for rehearing, and the Alabama Supreme Court denied his petition for a writ of certiorari. ( See http://v2.alacourt.com, CC-2005-002696.61). A certificate of judgment was issued on or about July 11, 2014. ( See http://v2.alacourt.com, CC-2005-002696.61).
Williams filed his petition for a writ of habeas corpus with this Court no earlier than September 5, 2014. ( See doc. 1 at 17).
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.
Williams' conviction became final on March 14, 2007, when the Alabama Court of Criminal Appeals issued the certificate of judgment. Accordingly, he had until one year from this date to file his habeas petition with this Court. He did not. The period for filing lapsed 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. Williams filed his first post-conviction petition on February 13, 2008. This filing was sufficient to statutorily toll the statute of limitations. However, at this point, 336 days of the 365-day limitations period had run. Only 29 days remained. After the Circuit Court denied Williams' Rule 32 petition, Williams appealed. (Doc. 1 at 4). The Alabama Court of Criminal Appeals affirmed the Circuit Court's dismissal of the petition on September 25, 2009. ( See http://v2.alacourt.com, CC-2005-002696.60). A certificate of judgment was issued on or about October 14, 2009. (Id.).
On October 14, 2009, the limitations period began to run again. The remaining 29 days expired on November 12, 2009. Williams did not file his second Rule 32 petition until March 27, 2013. By this time, the one-year statute of limitations to file a federal habeas petition had expired, and even assuming this was a properly filed petition, there was no running limitations period to toll. See Tinker v. v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (" a state court petition . . . that is filed following the expiration of the federal limitations period 'cannot toll that period because there is no period remaining to be tolled'"), cert. denied, 534 U.S. 1144 (2002). Therefore, when Williams filed this petition on or about September 5, 2014, the limitations period had long expired.
Initially, Williams contended his petition should not be time-barred under § 2244(d) because he is appealing the state court's decision regarding his previously filed Rule 32 petition pursuant to Rule 32.1, Ala. R. Crim. P. (Doc. 1 at 15-16). This argument is without merit. Federal habeas relief is only to address defects in a criminal defendant's conviction and sentence; an alleged defect in a collateral proceeding, such as a Rule 32 proceeding, does not state a basis for habeas relief. Quince v. Crozby, 360 F.3d 1259, 1262 (11th Cir. 2004). In his response to a show cause order, Williams " concedes that his petition should be time-barred under § 2244(d)." (Doc. 3 at 1, ¶ 1).
While actual innocence can overcome the statute of limitations in the AEDPA, McQuiggin v. Perkins,
___U.S. ___, 133 S.Ct. 1924 (2013), Williams has not asserted he is actually innocent. See Ray v. Mitchem, 272 Fed.Appx. 807, 2008 WL 887379 at *3 (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), and Williams alleges nothing showing he is entitled to equitable tolling. See Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir. 2006). Accordingly, Williams' claims are time barred.
Based on the foregoing, the undersigned RECOMMENDS the petition for a writ of habeas corpus be DISMISSED WITH PREJUDICE as time-barred.
IV. 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.