United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION.
W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE.
Lorenzo Mosley, a state inmate in the custody of Respondent,
petitions this Court for federal habeas corpus relief
pursuant to 28 U.S.C. § 2254. (Doc. 1.) The petition has
been referred to the undersigned for report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
S.D. Ala. GenLR 72, and Rule 8 of the Rules Governing Section
2254 Cases. The undersigned has conducted a careful review of
the record and finds that no evidentiary hearing is required
to resolve this action. See Kelley v. Sec'y for the
Dep't of Corr., 377 F.3d 1317 (11th Cir.
2004). After careful consideration of the record, it is
recommended that the petition be dismissed as time-barred.
AND FACTUAL BACKGROUND
February 2, 2001, a jury in Mobile County Circuit Court
returned a verdict against Petitioner, finding him guilty of
manslaughter. (Doc. 14-3 at 157-59.) On February 16, 2001,
the Circuit Court sentenced Petitioner to 20 years in prison
on this conviction. (Id. at 190, 197.) On June 1,
2001, Petitioner's appellate counsel filed a brief (Doc.
14-4) appealing the conviction to the Alabama Court of
Criminal Appeals. On September 21, 2001, the Court of
Criminal Appeals issued final judgment affirming the
conviction. (Docs. 14-6, 14-7.) The Petitioner did not file
an application for rehearing before the Court of Criminal
Appeals or an application for writ of certiorari to the
Supreme Court of Alabama. He also has not filed a habeas
corpus petition in state court.
filed the instant § 2254 petition (Doc. 1) on July 12,
2016. (Doc. 1 at 13.) He attacks his conviction on grounds of
actual innocence and on grounds that the trial court found an
Alabama Department of Corrections disciplinary investigation
inadmissible as evidence. (Doc. 1 at 7.) Respondent's
brief in opposition asserts that the Petition brought here is
time-barred, is procedurally-barred since its claims have not
been exhausted in state court, and fails on the merits.
(See Doc. 14.) On December 12, 2016, the undersigned
ordered the Petitioner to show cause by January 3, 2017, why
his claims should not be dismissed as time-barred. (Doc. 15
at 1.) Petitioner did not timely respond to this order.
PERIOD OF LIMITATIONS
claim is time-barred under the Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA) that amended 28 U.S.C.
§ 2244. Specifically, § 2244, as amended,
states in pertinent part that:
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