United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
This case is before the court on a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Christopher Hawthorne ("Hawthorne") on October 15, 2012. Hawthorne presents claims challenging the constitutionality of his 2006 murder conviction in the Dale County Circuit Court. The respondents argue Hawthorne's petition is time-barred by the one-year federal limitation period. After careful review, the court concludes no evidentiary hearing is required and that the § 2254 petition should be denied as untimely.
On March 1, 2006, a Dale County jury found Hawthorne guilty of murder in violation of § 13A-6-2(a)(1), Ala. Code 1975. Ex. B-1 at 1.  On May 25, 2006, the trial court sentenced him to 35 years in prison. Ex. B at 2. Hawthorne appealed, and on February 23, 2007, the Alabama Court of Criminal Appeals affirmed his conviction and sentence in an unpublished memorandum opinion. Ex. A. Hawthorne filed no application for rehearing and did not seek certiorari review in the Alabama Supreme Court. On March 14, 2007, the Alabama Court of Criminal Appeals issued a certificate of judgment. Ex. A-1.
Almost nine months later, on December 3, 2007, Hawthorne filed a pro se petition for post-conviction relief under Ala.R.Crim.P. 32, alleging various instances of trial error and ineffective assistance of counsel. See Ex. B at 66. On January 11, 2008, the trial court entered an order denying all claims in the Rule 32 petition, except Hawthorne's claims of ineffective assistance of counsel, on grounds the claims could have been raised at trial or on appeal and were therefore precluded. Id. at 81-82. As for Hawthorne's claims of ineffective assistance of counsel, the trial court set an evidentiary hearing to address those claims and appointed counsel to represent Hawthorne. Id. Prior to the evidentiary hearing, Hawthorne retained different counsel and his appointed counsel was allowed to withdraw. Id. at 90-91.
The evidentiary hearing was held on April 2, 2008. On April 9, 2008, the trial court entered an order finding Hawthorne's claims of ineffective assistance of counsel lacked merit and denying his Rule 32 petition. Id. at 92-96. Hawthorne appealed from the denial of his Rule 32 petition, and on October 24, 2008, the Alabama Court of Criminal Appeals affirmed the trial court's judgment by unpublished memorandum opinion. Ex. B-1. Hawthorne filed no application for rehearing and did not seek certiorari review in the Alabama Supreme Court. On November 12, 2008, the Alabama Court of Criminal Appeals issued its certificate of judgment. Ex. B-2.
About April 2010, Hawthorne, proceeding pro se, filed a second Rule 32 petition in the trial court, alleging that a legal organization he had hired to assist him in pursuing his appeal from the denial of his first Rule 32 petition and other possible post-conviction remedies had rendered ineffective assistance of counsel by abandoning its representation of him. Doc. No. 1 at 3; Doc. No. 2 at 8. On September 20, 2010, the trial court denied Hawthorne's second Rule 32 petition as a successive petition. Id. Hawthorne took no appeal from that decision.
On October 15, 2012, Hawthorne filed this petition for writ of habeas corpus under 28 U.S.C. § 2254, raising claims that he was denied effective assistance of trial and appellate counsel, that his conviction was obtained by a violation of his privilege against self-incrimination through the trial court's failure to suppress inadmissible statements, and that his conviction was obtained because of the prosecution's failure to disclose favorable evidence. Doc. No. 1; Doc. No. 3. The respondents contend the § 2254 petition is time-barred under the federal limitation period in 28 U.S.C. § 2244(d).
A. The Federal Limitation Period, 28 U.S.C. § 2244(d)
1. One-year Limitation Period under § 2244(d)(1)(A)
Title 28 § 2244(d)(1)(A) directs that the one-year limitation period for filing a § 2254 petition begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Because Hawthorne, on direct review, filed no application for rehearing and did not seek certiorari review in the Alabama Supreme Court after the Alabama Court of Criminal Appeals issued its memorandum opinion affirming his conviction and sentence, he was not entitled to the additional 90 days for seeking certiorari review in the United States Supreme Court; thus, his conviction became "final" for federal habeas purposes when the Alabama Court of Criminal Appeals issued its certificate of judgment on March 14, 2007. Martinez v. Mitchem, Civil Action No. 1:11cv667-WKW, 2014 WL 805474, at *2 (M.D. Ala. Feb. 28, 2014); see Pugh v. Smith, 465 F.3d 1295, XXXX-XXXX (11th Cir. 2006). And, for purposes of § 2244(d)(1)(A), the one-year period for filing his federal habeas petition commenced on that same date. Hawthorne filed the instant habeas petition on October 15, 2012 - over five years after his conviction became final.
2. Statutory Tolling under § 2244(d)(2)
Title 28 § 2244(d)(2) provides that "[t]he 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" the federal limitation period. 28 U.S.C. § 2244(d)(2); see Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001). On December 3, 2007, Hawthorne filed a Rule 32 petition in the trial court challenging his conviction and sentence, thereby tolling the federal limitation period under § 2244(d)(2). At that time, the one-year period for filing a § 2254 petition had run for 264 days (from March 14, 2007, to December 3, 2007). The state court proceedings on that Rule 32 petition concluded on November 12, 2008, when the Alabama Court of Criminal Appeals issued a certificate of judgment in the case. At that time, Hawthorne had 101 (365 - 264) days remaining within which to file a timely § 2254 petition. The limitation ...