United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Hardy Devan Tolbert, Jr., a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter has been referred to the undersigned for the entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the instant petition be dismissed as time barred under the Anti-Terrorism and Effective Death Penalty Act's one-year limitations provision contained in 28 U.S.C. § 2244(d). Alternatively, it is recommended that the Court find that it is procedurally barred from reaching the merits of the sole claim raised by Tolbert herein.
FINDINGS OF FACT
On April 1, 2009, Tolbert entered a counseled guilty plea to distribution of a controlled substance and was sentenced to life imprisonment pursuant to Alabama's Habitual Felony Offender Act. ( Compare Doc. 1, at 2 with Doc. 7, at 1.) Sometime thereafter, petitioner filed a notice of appeal ( see Doc. 7, at 3); however, Tolbert's direct appeal was dismissed by the Alabama Court of Criminal Appeals due to his failure to pay the $100.00 docket fee or provide proof that he "had been granted leave to proceed on appeal in forma pauperis or ha[d] a motion pending with the trial court seeking leave to proceed on appeal in forma pauperis." (Doc. 7, Exhibit 1.) A certificate of final judgment of affirmance issued on November 24, 2009. (Doc. 7, Exhibit 2; compare id. with Doc. 7, Exhibit 1 ("Having this date dismissed this appeal, the Court further orders that the certificate of judgment shall issue forthwith.").)
Tolbert collaterally attacked his conviction and sentence on March 31, 2010. ( See Doc. 7, Exhibit 3, at 2.) "In his petition, Tolbert alleged that he was denied the effective assistance of counsel due to a conflict of interest by his attorney that adversely affected his representation." (Id. ) The Alabama Court of Criminal Appeals affirmed the trial court's denial of Tolbert's Rule 32 petition by memorandum opinion issued on September 16, 2011. Tolbert v. State, 114 So.3d 164 (Ala.Crim.App. 2011) (table). A certificate of final judgment of affirmance was entered on October 5, 2011. (Doc. 7, Exhibit 4.)
Tolbert was deemed to have filed his second Rule 32 petition in the Circuit Court of Mobile County, Alabama on March 13, 2012. (Doc. 7, Exhibit 5, at 2.) Numerous claims were raised by petitioner but only one relevant to the instant petition, as follows: "Tolbert argued that neither the State nor the circuit court invoked the Habitual Felony Offender Act  prior to his sentencing, therefore, according to Tolbert, his sentence exceeds the sentence allowed for a Class B felony and is illegal." (Id. at 2.) The trial court determined that this claim was nonjurisdictional and, therefore, subject to the "procedural bars of Rule 32.2(c) because the petition was untimely filed." (Id. at 3.) The Alabama Court of Criminal Appeals determined that "[t]he circuit court correctly found  Tolbert's petition  precluded as untimely under Rule 32.2(c)" inasmuch as the foregoing claim was a non-jurisdictional claim. (Id. ) In addition, the appellate court found the claim to be without merit. (Id. at 3-4.) Tolbert's petition for writ of certiorari was denied without opinion on January 10, 2014 (Doc. 7, Exhibit 6) and the certificate of final judgment of affirmance was issued that same day (Doc. 7, Exhibit 7).
In his petition filed in this Court on August 26, 2014 (Doc. 1, at 13) Tolbert contends that he was denied his constitutional right to due process of law due to the State's failure to properly invoke Alabama's Habitual Felony Offender Act by establishing or offering proof that he had three prior qualifying felony convictions ( see id. at 14 & 16-18).
CONCLUSIONS OF LAW
A. Statute of Limitations.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. 2244 providing for a one-year period of limitations within which state prisoners must file their habeas corpus petitions pursuant to 28 U.S.C. § 2254. Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1210 (11th Cir. 1998).
(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 ...