United States District Court, N.D. Alabama, Middle Division
November 26, 2014
JOSEPH M. BEASON, Petitioner
CARTER DAVENPORT, Warden, and THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents
Joseph M Beason, Petitioner, Pro se, Springville, AL.
REPORT AND RECOMMENDATION
HARWELL G. DAVIS, III, UNITED STATES MAGISTRATE JUDGE.
Petitioner, Joseph M. Beason, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges the validity of his 2008 conviction in the Circuit Court of St. Clair County for unlawful distribution of a controlled substance.
Factual and Procedural Background
Petitioner was indicted by the St. Clair County Grand Jury on February 15, 2008. On May 20, 2008, petitioner pled guilty to unlawful distribution of a controlled substance, with the sale occurring within three miles of a school and within three miles of a public housing project, in violation of Ala. Code § § 13A-12-211, 13A-12-250 and 13A-12-270. The conviction was based on his sale of crack cocaine to a confidential informant. The trial court sentenced petitioner to a 30-year term of imprisonment on June 30, 2008 (20 years for the distribution conviction, based on petitioner's status as an habitual offender, five years consecutive because the distribution occurred near a school, and an additional five years consecutive because the distribution occurred near a housing project). The Alabama Court of Criminal Appeals affirmed the convictions but reversed the sentence and remanded the case to the trial court for re-sentencing on May 29, 2009. The appellate court instructed the trial court to re-sentence petitioner without the enhancement for sale near a housing project. On remand, on June 22, 2009, the trial court sentenced petitioner to a 25-year term of imprisonment. The Alabama Court of Criminal Appeals affirmed on July 24, 2009.
Petitioner filed a petition for post-conviction relief pursuant to Rule 32, Ala.R.Crim.P., on October 12, 2009. As grounds, he asserted that the State failed to provide proper notice of its intent to invoke the habitual offender sentencing provisions, that the trial court failed to advise petitioner of the proper mandatory minimum and possible maximum sentences, that he received ineffective assistance of counsel, that the court was without jurisdiction to render judgment or impose sentence, and that he was actually innocent of the charge against him. The trial court denied the petition without a hearing on November 30, 2009, as without merit or precluded from consideration. The denial of collateral relief was affirmed by the Alabama Court of Criminal Appeals on April 27, 2010. A certificate of judgment was issued on May 12, 2010.
Petitioner filed a second Rule 32 petition in the trial court, signed January 26, 2011. The filing date is shown on the docket sheet as February 25, 2011. As grounds, he asserted that the trial court was without jurisdiction to render judgment or impose sentence because the indictment failed to allege petitioner sold drugs to a confidential informant, that the sentence imposed exceeded the maximum authorized by law, and that newly discovered material facts required the conviction or sentence to be vacated. He also alleged he was actually innocent and that the evidence was insufficient to support the conviction. The petition was denied and dismissed on March 29, 2011. Petitioner's appeal was dismissed on September 29, 2011, and a certificate of judgment was issued that same day.
Petitioner filed his petition for writ of habeas corpus on October 9, 2014. As grounds, he asserts that he was entrapped and that he is actually innocent of the charge against him because he did not know that the bag he handed to the confidential informant contained drugs.
Title 28 U.S.C. § 2244(d), provides:
(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 factual predicate of 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.
There is no indication that petitioner sought rehearing from the Alabama Court of Criminal Appeals after it affirmed the conviction and sentence on return to remand on July 24, 2009. The time for him to do so expired 14 days later, and the conviction became final on August 7, 2009. See Rule 40(c), Ala.R.App.P. From that date until petitioner filed his first Rule 32 petition, October 12, 2009, 65 days elapsed. The running of the one-year statute of limitations was tolled during the pendency of the first Rule 32 proceedings. The limitation period began to run again on May 13, 2010, after issuance of the certificate of judgment. From that time until petitioner filed his second Rule 32 petition,  another 257 days elapsed. The limitation period was again tolled during the pendency of petitioner's second Rule 32 petition, but it began to run again upon the conclusion of appellate review on September 29, 2011. From that time until petitioner filed the instant habeas corpus petition on October 9, 2014, more than three years elapsed. Therefore, the petition is time-barred.
It is by now clear in this Circuit that " [e]quitable tolling can be applied to prevent the application of the AEDPA's statutory deadline when 'extraordinary circumstances' have worked to prevent an otherwise diligent petitioner from timely filing his petition." Helton v. Secretary for the Dep't of Corrections, 259 F.3d 1310, 1312 (11th Cir. 2001). Although " [e]quitable tolling is an extraordinary remedy which is typically applied sparingly, " Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58, 112 L.Ed.2d 435 (1990)), it is " appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (emphasis added). The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner. See, e.g., Helton, 259 F.3d at 1313-14 (denying equitable tolling in light of petitioner's failure to present necessary evidence); see also Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (" The burden is on the plaintiff to show that equitable tolling is warranted."). Petitioner has offered no evidence that there were extraordinary circumstances that were both beyond his control and unavoidable even with diligence that prevented him from timely filing his federal habeas corpus petition.
Petitioner has claimed he was actually innocent of the charges against him. With respect to equitable tolling based on a claim of actual innocence, the Eleventh Circuit has stated:
Neither the Supreme Court nor this Court has ever held that the Constitution requires an actual innocence exception to the AEDPA's one-year limitations period. See Johnson v. Florida Dep't of Corr., 513 F.3d 1328, 1333 (11th Cir. 2008) (" To date, this Court has avoided this constitutional issue because no time-barred petitioner has made the requisite actual-innocence showing."). Before reaching this question, the petitioner must first make a sufficient showing of actual innocence. Id. This requires the petitioner to produce " 'new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" Arthur, 452 F.3d at 1245 (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865). If the petitioner shows " that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence, " then he has made a " gateway" claim of innocence allowing his otherwise barred constitutional claims to be considered on the merits. Schlup, 513 U.S. at 315, 327, 115 S.Ct. at 861, 867.
In evaluating this new evidence, a habeas court " may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." House, 547 U.S. at 537, 126 S.Ct. at 2077 (quotation marks and citation omitted). The court then assesses the likely impact of this new evidence on reasonable jurors. Id. at 538, 126 S.Ct. at 2077. The demanding nature of the Schlup standard ensures that only the " extraordinary" case will merit review of the procedurally barred claims. Id.
Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008). Petitioner has failed to make the requisite showing because he has not presented new reliable evidence that was not presented at trial, nor has he shown that it is more likely than not that no reasonable juror would have convicted him in the light of any new evidence.
Based on the foregoing, the magistrate judge RECOMMENDS that the petition for writ of habeas corpus be DENIED as time-barred.
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 complaint or 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. Objections not meeting this specificity requirement will not be considered by a district judge. IT IS NOT NECESSARY FOR PLAINTIFF OR PETITIONER TO REPEAT HIS LEGAL ARGUMENTS. AS TO THE FACTS, IF PLAINTIFF OR PETITIONER DOES RESPOND, HE SHOULD LIMIT HIMSELF TO ADDRESSING THE STATEMENTS OF FACT CONTAINED IN THE REPORT AND RECOMMENDATION TO WHICH HE OBJECTS. HE ALSO SHOULD OBJECT TO ANY FACTS NOT INCLUDED IN THE REPORT AND RECOMMENDATION WHICH HE CONTENDS SHOULD HAVE BEEN INCLUDED. THE FILING OF OBJECTIONS IS NOT A PROPER VEHICLE TO MAKE NEW ALLEGATIONS OR PRESENT ADDITIONAL EVIDENCE. 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.
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.