United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Petitioner, Michael Ruff, on May 4, 2012. In this petition, Petitioner challenges matters associated with the October 29, 2010, revocation of his probation on a felony DUI conviction entered against him by the Circuit Court for Montgomery County on October 4, 2006. Doc. No. 1. The trial court sentenced Petitioner for that conviction on October 27, 2006, to ten years, split under the Alabama Split Sentence Act, Ala. Code § 15-18-8, requiring that Petitioner serve three years' imprisonment followed by three years' probation. Doc. No. 12, Exhs. A, B, C.
On October 8, 2010, during the probationary period of his sentence, Petitioner was advised in open court he had violated a condition of his probation. Following a revocation hearing on October 29, 2010, the trial court revoked Petitioner's probation and ordered that he serve the remainder of his split sentence. Petitioner did not appeal his probation revocation. He subsequently filed a Rule 32 petition with the trial court on August 4, 2011. The trial court denied Petitioner's request for indigent status on October 29, 2011, and no further action on the petition was taken. Doc. No. 12, Exhs. B, H, I, J, K.
Pursuant to the orders of this court, Respondents filed an answer in which they argue that the instant habeas petition is barred by the one-year limitation period applicable to 28 U.S.C. § 2254 petitions. See 28 U.S.C. § 2244(d)(1). Respondents contend that because Petitioner's probation was revoked on October 29, 2010-after the effective date of the statute of limitations-he must have filed his § 2254 petition within one year of this proceeding, exclusive of the time that any properly filed state post-conviction petition or other collateral review was pending in the state courts. Respondents concede that Petitioner filed a Rule 32 petition in the Circuit Court for Montgomery County, Alabama, on August 4, 2011. Even allowing a tolling of the limitation period during the pendency of this Rule 32 petition, the limitation period expired prior to Petitioner filing the present federal habeas petition. Doc. No. 12. See also Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); Tinker v. Moore, 255 F.3d 1331, 1333-35 n.4 (11th Cir. 2001).
Based on Respondents' answer, the court entered an order advising Petitioner he had failed to file his federal habeas petition within the one-year limitation period established by 28 U.S.C. § 2241(d)(1). Doc. No. 16. The order also gave Petitioner an opportunity to show cause why his petition should not be barred from review by this court. Id. Petitioner filed responses to Respondents' answer. See Doc. Nos. 13, 17. Upon review of the pleadings filed by the parties and applicable federal law, the court concludes that Petitioner's § 2254 petition for writ of habeas corpus relief is due to be denied as it was not filed within the requisite one-year period of limitations.
A. The Federal Period of Limitation
The Anti-Terrorism and Effective Death Penalty Act of 1996 was signed into law on April 24, 1996, and amended the habeas corpus statute to include a one-year period of limitation on petitions filed under 28 U.S.C. § 2254. This limitation period is codified at 28 U.S.C. § 2244(d) and provides that:
(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 ...