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Packer v. Forniss

United States District Court, S.D. Alabama, Southern Division

February 20, 2015

OLNEY PACKER, Petitioner,
v.
LEON FORNISS, Respondent.

REPORT AND RECOMMENDATION

BERT W. MILLING, Jr., Magistrate Judge.

This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be dismissed as time-barred and that judgment be entered in favor of Respondent Leon Forniss and against Petitioner Olney Packer pursuant to 28 U.S.C. § 2244(d). It is further recommended that any certificate of appealability filed by Petitioner be denied as he is not entitled to appeal in forma pauperis.

Petitioner was convicted of manslaughter in the Mobile County Circuit Court on July 29, 1981 for which he received a sentence of life in the state penitentiary ( see Doc. 9, Exhibit RX-1, p. 4). On appeal, the Alabama Court of Criminal Appeals affirmed the conviction (Doc. 4, p. 5). Packer sought certiorari, but the Alabama Supreme Court denied it; on that same day, April 2, 1982, the certificate of final judgment was entered ( see Doc. 9, Exhibit RX-1, p. 6).

On January 19, 1983, Petitioner filed a petition for writ of error coram nobis that was denied ( see Doc. 9, Exhibit RX-1, p. 6). The Court of Criminal Appeals affirmed the denial and, on July 28, 1983, entered a certificate of judgment ( see Doc. 9, Exhibit RX-1, pp. 6-7).

On April 15, 1997, Packer filed a State Rule 32 petition; it was denied as untimely and successive ( see Doc. 9, Exhibit RX-1, p. 9). The denial was affirmed by the Alabama Court of Criminal Appeals and a certificate of judgment was issued on November 18, 1997 (Doc. 9, Exhibit RX-1, p. 10).

On July 12, 2004, Petitioner filed a Motion to Modify that was denied (Doc. 9, Exhibit X-1, pp. 11-13). The Alabama Court of Criminal Appeals reclassified the Motion as a State Rule 32 petition and dismissed it because Packer had not paid a filing fee, rendering the Circuit Court's judgment void and unsupportive of an appeal; a certificate of judgment was issued on January 14, 2005 (Doc. 9, Exhibits RX-6 and RX-7).

On October 26, 2012, Packer filed another State Rule 32 petition that was denied as untimely and successive (Doc. 9, Exhibit RX-8, pp. 1-2). The Alabama Court of Criminal Appeals affirmed the lower court decision, finding that Petitioner had abandoned the only claim raised in the lower court and raised a new claim that had not been previously raised (Doc. 9, Exhibit RX-8). A certificate of judgment was issued on July 5, 2013 (Doc. 9, Exhibit RX-9).

Packer filed his final Rule 32 petition on November 14, 2013; the trial court dismissed the petition, finding the claims unsupported by the asserted facts and without merit (Doc. 9, Exhibit RX-10, pp. 13-23, 46-49). The Alabama Court of Criminal Appeals affirmed the decision and, on July 2, 2014, issued a certificate of judgment (Doc. 9, Exhibits RX-11 and RX-12).

Petitioner filed a complaint with this Court on September 18, 2014 raising the following claims: (1) The trial court lacked jurisdiction to sentence him; and (2) his sentence exceeds the maximum allowed by statute (Doc. 4).

Respondent has answered the petition, arguing that it should be dismissed as it was not filed within the one-year statute of limitations period (Doc. 9, pp. 9-12). Respondent refers to provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter AEDPA ) that amended, in pertinent part, 28 U.S.C. § 2244. The specific provision states as follows:

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 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).

The AEDPA became effective on April 24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). The Eleventh Circuit Court of Appeals held that the one-year limitations period would begin to run on that date, April 24, 1996, for potential habeas petitioners whose convictions had already become final by way of direct review. Goodman, 151 F.3d at 1337; Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998). In other words, the Eleventh Circuit Court of Appeals established a "grace period" through April 23, 1997 so that federal and state criminal defendants would not lose the opportunity to seek federal habeas review.

Petitioner's conviction became final on April 2, 1982, the day on which the certificate of judgment was entered (Doc. 9, Exhibit RX-4). As such, Packer's conviction became final prior to the effective date of the AEDPA. So, ...


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