United States District Court, N.D. Alabama, Southern Division
SHARON LOVELACE BLACKBURN, District Judge.
This case is presently pending before the court on respondents' Motion to Dismiss Eugene Clemons's Untimely-filed Petition for Writ of Habeas Corpus. (Doc. 25.) Petitioner Eugene Milton Clemons, II, protectively filed a Petition for Writ of Habeas Corpus in this court on August 16, 2010. (Doc. 1.) After a stay of the matter pending additional state post-conviction proceedings, respondents, William G. Sharp, Jr. and Walter Myers, filed a Motion seeking to dismiss Clemons's petition as untimely filed. Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that respondents' Motion to Dismiss Eugene Clemons's Untimely-filed Petition for Writ of Habeas Corpus, (doc. 25), is due to be granted in part and denied in part.
Pursuant to the Antiterrorism and Effective Death Penalty Act [hereinafter "AEDPA"], Antiterrorism and Effective Death Penalty Act's (AEDPA):
(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.
28 U.S.C.A. § 2244(d). "[Subsection] 2244(d)(1) provides that a 1-year period of limitation shall apply to an application for a writ of habeas corpus.'" Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) (emphasis in Pace ). Subsection 2244(d)(1) "provides one means of calculating the limitation with regard to the application' as a whole, § 2244(d)(1)(A) (date of final judgment), but three others... require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate)." Id. In this Circuit, "the statute of limitations in AEDPA applies on a claim-by-claim basis in a multiple trigger date case." Zack v. Tucker, 704 F.3d 917, 926 (11th Cir.) (en banc); see also id. at 927 (Carnes, J., concurring specially) ("Adopting the petitioner's interpretation of the statutory language [that § 2244(d)(1)(B)-(D) applied to the application as a whole] would mean that every time the Supreme Court issued a decision recognizing a new, retroactively applicable constitutional right, the statute of limitations bar would be lifted for any and all other claims a petitioner wished to bring. And that would be true no matter how old those other claims were, no matter how unrelated they were to the new law claim, and no matter how baseless the new law claim was in that case.").
This case is a "multiple trigger date case." See id. at 926. Petitioner has raised an Atkins claim,  (doc. 1 ¶¶ 27-41, at pp. 27-30 [stating as a ground for relief, "Mr. Clemons is mentally retarded and cannot be executed under the United States Supreme Court decision in Atkins v. Virginia "]), which the parties agree is timely pursuant to § 2244(d)(1)(C). (Doc. 28 at 25; doc. 30 at 22.) Therefore, respondents' Motion to Dismiss, (doc. 25), will be denied as to petitioner's Atkins claim.
As for Clemons's remaining grounds for relief, respondents contend the claims are barred by § 2244(d)(1)(A)'s one-year statute of limitations, and such claims are not subject to either statutory or equitable tolling.
A. STATUTORY TOLLING
The issue for this court to decide is whether petitioner's Rule 32 post-conviction petition was "properly filed" in the Alabama state court on December 27, 1999, or on January 28, 2000. Clemons's conviction became final on January 25, 1999, the date the Supreme Court of the United States denied his petition for writ of certiorari. Pursuant to § 2244(d)(1), Clemons had one year to file his federal habeas petition; however, this one-year limitations period is tolled while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending, " id. (d)(2). Therefore, if Clemons's Rule 32 petition was "properly filed" on December 27, 1999, the time for filing his habeas petition in this court was tolled and his habeas petition is timely. However, if his Rule 32 petition was not "properly filed" until January 28, 2000, the time for filing his federal habeas petition expired and his petition, save his Atkins claim, was untimely filed. See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) ("We note in closing that none of the documents Sibley attempted to file with the state courts after August 10, 2001 - the ...