United States District Court, N.D. Alabama, Southern Division
Scott Coogler United States District Judge.
December 30, 2016, the magistrate judge entered a report
recommending this petition for writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2254, be dismissed as
time-barred. (Doc. 6). Petitioner, Levi Josiah Lewis, has filed a
response, which the undersigned construes as objections to
the report and recommendation. (Doc. 7). For the reasons that
follow, the magistrate judge's report and recommendation
will be adopted and accepted, as modified herein.
objections, Petitioner asserts a number of arguments
regarding why his claims are not time-barred: (1) the trial
court did not inform him of his right to appeal or withdraw
his guilty plea; (2) the statute of limitations does not
apply here because of the jurisdictional nature of
Petitioner's federal habeas claims; and (3) statutory and
equitable tolling apply here because of procedural issues
concerning Petitioner's first Rule 32 petition and due to
his subsequent transfer to St. Clair Correctional Facility.
(Doc. 7). Each of these arguments is addressed in turn.
Petitioner's contention that the trial court did not
advise him of his right to appeal or withdraw his plea of
guilty is contradicted by the state court record. In
conjunction with Petitioner's guilty plea to attempted
murder, he signed a form entitled "Explanation of Rights
and Plea of Guilty." (St. Ct. Doc. 30). Under the
heading "Rights You Have and the Waiver of Your Rights,
" the form explained:
BY ENTERING A PLEA OF GULTY, YOU WILL ALSO WAIVE YOUR RIGHT
TO APPEAL, UNLESS (1) YOU HAVE, BEFORE ENTERING THE PLEA OF
GUILTY EXPRESSLY RESERVED THE RIGHT TO APPEAL WITH RESPECT TO
A PARTICULAR ISSUE OR ISSUES, IN WHICH EVENT APPELLATE REVIEW
SHALL BE LIMITED TO A DETERMINATION OF THE ISSUE OR ISSUES
RESERVED, OR (2) YOU HAVE TIMELY FILED A MOTION TO WITHDRAW
THE PLEA OF GUILTY AFTER PRONOUNCEMENT OF SENTENCE . . . .
(Id.). Petitioner's signature appears below
this explanation and immediately following a statement that
he had read the entire form or that it was read to him.
(Id.). Accordingly, Petitioner's contention that
the trial court failed to advise him of his right to appeal
or withdraw his guilty plea is belied by the record and is
devoid of merit.
to the extent Petitioner contends the sentencing court's
alleged lack of jurisdiction over him precludes application
of the statute of limitations here, the argument fails. As
previously noted by the undersigned and other judges sitting
in this district, "there is no exception under
AEDPA's statute of limitations for a § 2254 claim
that the state court lacked subject matter
jurisdiction." Owens v. Mitchem, No.
10-1167-LSC-HGD, 2012 WL 4009335, *3 n.3 (N.D. Ala. July 10,
2012), adopted by 2012 WL 4009331 (N.D. Ala. Sept.
6, 2012); Davidson v. Kizzire, No. 12-2101-LSC-JEO
(N.D. Ala. entered Apr. 21, 2014); cf. Williams
v. United States, 383 F.App'x 927, 929-30 (11th Cir.
2010) (holding the one-year statute of limitations set forth
in 28 U.S.C. § 2255(f) applies to claims challenging the
trial court's jurisdiction brought by a federal prisoner
in a motion to vacate under 28 U.S.C. § 2255). In
challenging the state court's jurisdiction, Petitioner
asks the undersigned to second guess the state court's
interpretation of state law. This form of relief is
unavailable to a federal habeas petitioner. See
McCullough v. Singletary, 967 F.2d 530, 535-36 (11th
Cir. 1992). For all of the foregoing reasons, the supposed
jurisdictional nature of Petitioner's claims does not
somehow excuse their untimeliness under § 2244(d).
Petitioner contends his claims are saved by statutory and
equitable tolling. (Doc. 7 at 3-5). As to statutory tolling,
Petitioner contends he initially filed a Rule 32 Petition in
the sentencing court on March 8, 2013. (Id. at 3).
Apparently, rather than pay the filing fee, Petitioner filed
a motion for leave to proceed in forma pauperis.
(See id.). Petitioner alleges that, after hearing
nothing for more than eight months, he wrote the sentencing
court on November 18, 2013, regarding the status of the Rule
32 Petition. In response the sentencing court informed
Petitioner on December 12, 2013, that the Rule 32 Petition
was never filed because it denied the motion for leave to
file in forma pauperis. (Id.). Accordingly,
the Rule 32 Petition was returned to Petitioner as unfiled.
(Id.). Petitioner states that he sought mandamus
relief from the Alabama Court of Criminal Appeals on December
28, 2013, which was denied on March 31, 2014. (Id.).
extent Petitioner contends the foregoing facts entitle him to
statutory tolling, he is mistaken. Statutory tolling arises
from 28 U.S.C. § 2244(d)(2), which tolls the one-year
limitation period during the pendency of "a properly
filed application for State post-conviction or other
collateral review" of the underlying judgment. See
also McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir.
2009). However, because the sentencing court denied
Petitioner's motion for leave to proceed in forma
pauperis, and because Petitioner did not pay the fee,
there is no question that his first Rule 32 Petition was not
"properly filed." Accordingly, it had no statutory
tolling effect. See Carroll v. Price, No.
14-065-JHH-TMP, 2015 WL 225468 at * 4 (N.D. Ala.
entered Jan. 16, 2015). For the foregoing reasons,
the magistrate judge correctly concluded that the statute of
limitations regarding Petitioner's federal habeas claims
expired on June 18, 2013.
contention that he is entitled to equitable tolling is
largely based on his transfer to St. Clair Correctional
Facility, where dangerous conditions prevented him from
accessing the law library. (Doc. 7 at 4-5). Although
Petitioner does not state precisely when he was transferred
to St. Clair, it appears the transfer occurred in 2015. (Doc.
7 at 3). Additionally, all of the St. Clair incidents about
which Petitioner complains occurred in 2015 and 2016. (Doc. 7
at 4). Accordingly, even if the facts alleged in
Petitioner's objections entitled him to equitable
tolling, there was nothing left to toll because the statute
of limitations on Petitioner's federal habeas claims
expired on June 18, 2013. For the foregoing reasons, the
undersigned need not determine whether the facts alleged by
Petitioner would entitle him to equitable tolling.
reasons stated above, Petitioner's objections will be
Exhaustion and Procedural Default
reviewing the record in this case, the undersigned discerns
an additional reason Petitioner's claims are due to be
dismissed. Specifically, the magistrate judge's report
notes that when Petitioner appealed the dismissal of his
petition pursuant to Rule 32 of the Alabama Rules of Criminal
Procedure, the "Alabama Supreme Court affirmed and
entered a certificate of judgment on April 10, 2015."
(Doc. 6 at 2). However, review of the state court record
reveals Petitioner never sought certiorari from the
Alabama Supreme Court regarding the denial of his Rule 32
Petition. Instead, following its affirmance of the sentencing
court's dismissal of the Rule 32 Petition, the Alabama
Court of Criminal Appeals entered a certificate of judgment
on April 10, 2015. (See St. Ct. Doc. 29). This,
coupled with the fact that Petitioner never pursued a direct
appeal, necessarily means Petitioner never presented any of
his claims to the Alabama Supreme Court. A state prisoner is