United States District Court, N.D. Alabama, Southern Division
K. KALLON UNITED STATES DISTRICT JUDGE
5, 2017, the magistrate judge entered a Report and
Recommendation, doc. 8, recommending that the petition for
writ of habeas corpus be dismissed with prejudice. Petitioner
Robert Levert filed objections on May 19, 2017. Doc. 9. The
court has considered the entire file in this action, together
with the report and recommendation, and has reached an
independent conclusion that the report and recommendation is
due to be adopted and approved.
raises five objections to the report and recommendation's
finding that his claims were barred by the applicable statute
of limitations. The first of these objections reasserts his
petition's second claim, which is that he lacked counsel
at arraignment in violation of the Sixth Amendment.
Compare doc. 9 at 3 with doc. 1 at 7. The
second faults the magistrate judge's conclusion that
Levert failed to present “new evidence”
sufficient to demonstrate his actual innocence, arguing that
“clerk records and transcript that had not previously
been review [sic] by lower court . . . must be considered new
discovered evidence.” Doc. 9 at 3. Levert's third
objection argues the magistrate judge erred by finding he
failed to exercise due diligence to timely file his habeas
petition and offers examples of his diligence, including an
attached letter from the Alabama Department of Archives and
History responding to a record request from Levert, dated
July 8, 2015, and a record request directed to the Jefferson
County Circuit Clerk, dated September 17, 2015. Id.
at 4, 6-7. Fourth, Levert contends the magistrate judge
abused his discretion when he failed to grant Levert an
evidentiary hearing. Id. at 4. Finally, Levert
states his rights to due process and equal protection were
violated in this proceeding when he was “denied the
benefit of a record to pursue these claims.”
Id. at 5.
objections are meritless. Levert's first objection does
not actually contest the magistrate judge's findings that
his claims are time-barred, nor does it offer any reason to
conclude that Levert can overcome the statute of limitations.
And as for Levert's fourth claim, that no evidentiary
hearing was held in this case, he is not entitled to an
evidentiary hearing “if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief[.]” Schriro v. Landrigan, 550
U.S. 465, 474, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007).
The magistrate judge did not err in failing to provide a
rationale for not holding an evidentiary hearing in this case
due to the fact that Levert's claim are time-barred.
second, third, and fifth claims overlap in that they
implicate Levert's inability to obtain the records he
says demonstrate his actual innocence. To the extent Levert
argues equitable tolling saves his claim from being
time-barred because these records were unavailable to him
until they were supplied by the state in this habeas action,
as the magistrate judge stated, Levert offers no reason why
the court should find that his efforts within the last
several years to obtain these records supports a finding that
he has diligently tried over the last thirty years to
retrieve these records, or that an extraordinary circumstance
prevented him from obtaining the documents prior to the
expiration of the statute of limitations in April 1997.
See Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Moreover, these records-which Levert simultaneously
argues were produced in this case, doc. 9 at 3 (“[t]his
court at bar had the benefit of clerk records and transcript
that had not previously been review [sic] by any lower
court”), and unavailable to him in this case, doc. 9 at
5 (“[t]his court committed error by violating
petitioner's Due Process and Equal Protection Clause,
Fifth Amendment U.S.C. [sic] because Mr. Levert did not have
the benefit of a record to pursue these claims”)-are
not “new evidence” showing Levert was actually
innocent because they do not establish, as he claims, that he
executed a plea agreement prior to trial. Rather, the records
show only that there were negotiations that evidently failed
to produce a plea agreement. See doc. 4-1 at 2-12.
Finally, as for Levert's claim he was unable to utilize
the records produced in this case, he filed a traverse, doc.
6, and an amendment to that traverse, doc. 7, following the
production of the documents, and could have raised any
factual or legal argument he believed to be supported by the
records in his traverse. It is simply unclear how this court
contributed to whatever error Levert believes resulted from
the fact that he had not, allegedly, previously had access to
the court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and
conclusions of this court. The petition for writ of habeas
corpus is due to be dismissed. A separate order will be
court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. 2253(c)(2). To
make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). This court finds Petitioner's claims do not
satisfy either standard.
 While Levert argues that the records
presented in this action “had not previously been
reviewed by any lower court, ” this is plainly
incorrect, as they all relate to either Levert's direct
appeal of his conviction, (docs. 4-1, 4-2, 4-3, 4-4, &
4-5), or his Rule 32 ...