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Mosley v. Bolling

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

January 4, 2017

TERRANCE LORENZO MOSLEY (#206394), Petitioner,
v.
LEON BOLLING, Respondent.

          REPORT AND RECOMMENDATION.

          BERT W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE.

         Terrance 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         On 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.

         Petitioner 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[1], 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.

         ANALYSIS

         I. PERIOD OF LIMITATIONS

         Petitioner's claim is time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) that amended 28 U.S.C. § 2244.[2] Specifically, § 2244, as amended, states in pertinent part that:

         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 ...

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