United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, Jr., Magistrate Judge.
I. PROCEDURAL HISTORY
This case is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Carl Rupert Smith ("Smith"), a state inmate, on November 1, 2012. In this petition, Smith challenges two murder convictions imposed upon him in 1984 by the Circuit Court of Houston County, Alabama. On April 5, 1984, the trial court sentenced Smith to consecutive life sentences for these convictions. The record indicates that the murder convictions and resulting sentences became final by operation of law in May of 1984.
Pursuant to the orders of this court, the respondents filed an answer in which they argue that the instant federal habeas petition is barred by the limitations period applicable to 28 U.S.C. § 2254 petitions. Respondents' Answer - Doc. No. 10 at 6-7. In support of this argument, the respondents contend that because Smith's murder convictions became final long before the effective date of the AEDPA, the limitations period began to run on April 24, 1996. Id.; Wood v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, 1831 (2012) ("For a prisoner whose judgment became final before the AEDPA was enacted, the one-year limitations period runs from the AEDPA's effective date: April 24, 1996."); Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (Prisoners whose convictions were final prior to passage of the AEDPA are allowed a reasonable period of time after enactment of section 2244(d)'s one-year period of limitation to file their habeas petitions and "a reasonable time" is until April 24, 1997 - "one year from the AEDPA's effective date."). Because Smith's murder convictions became final well before passage of the AEDPA, his "time for filing a federal petition therefore began to run on the date of AEDPA's enactment, April 24, 1996, and expired on April 24, 1997, unless [Smith] had a properly filed' application for postconviction relief pending' during that period." Wood, ___ U.S. at ___, 132 S.Ct. at 1831; 28 U.S.C. § 2244(d)(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 section.").
The respondents acknowledge that Smith filed a state post-conviction petition pursuant to Rule 32, Alabama Rules of Criminal Procedure, in the Circuit Court of Houston County, Alabama on May 27, 2010, challenging his murder convictions. Respondents' Exhibit 1 - Doc. No. 10-1 at 6-16. The respondents assert that this Rule 32 petition did not toll the one-year period of limitations because Smith filed the petition after expiration of the federal limitations period and, therefore, this state post-conviction petition was not "pending" as required by the provisions of 28 U.S.C. § 2244(d)(2) for purposes of tolling the requisite period of limitations. Respondents' Answer - Doc. No. 10 at 7; Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), cert. denied, 531 U.S. 991 (2000) ("[E]ven properly filed' state-court petitions must be pending' [during the one-year period of limitation] in order to toll the limitations period. A state court petition... that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled."); Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) ("While a properly filed' application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once the limitations period has expired. In other words, the tolling provision does not operate to revive the one-year limitations period if such period has expired."); Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001) ("[A] properly filed petition in state court only tolls the time remaining within the federal limitation period."). Thus, the respondents maintain that "the limitations period began running for Smith on [the] AEDPA's effective date of April 24, 1996, " and, in the absence of statutory or equitable, tolling expired on April 27, 1997. Respondents' Answer - Doc. No. 10 at 7. "The limitations period therefore expired more than fifteen years before Smith filed the instant petition." Id.
Based on the foregoing, the court entered an order advising Smith he failed to file his federal habeas petition within the limitations period established by federal law. Order of January 2, 2013 - Doc. No. 12. This order provided Smith an opportunity to show cause why his habeas petition should not be barred from review by this court as untimely filed. Id. at 6. In response to this order, Smith asserts that to apply the AEDPA "retroactively in this case would be a violation of Ex Post Facto." Petitioner's Traverse - Doc. No. 11 at 1. Smith further argues that his claim before this court challenging the trial court's jurisdiction is a claim that "may be raised at any time and at any level or Court." Id.
Upon review of the pleadings filed by the parties, the undisputed state court record, relevant state law and applicable federal law, the court finds that no evidentiary hearing is required, Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts, and concludes that this habeas petition is due to be denied as Smith failed to file the petition within the applicable one-year period of limitations.
II. FEDERAL LIMITATIONS PERIOD
The Anti-Terrorism and Effective Death Penalty Act of 1996 became effective on April 24, 1996, and amended the habeas corpus statute to include a one-year period of limitations on petitions filed pursuant to 28 U.S.C. § 2254. This limitations 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 ...