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Presley v. Walker

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

October 2, 2017

GEORGE WALTER PRESLEY, Petitioner,
v.
CLIFFORD WALKER, Chairman, Alabama Board of Pardons and Paroles, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner George Walter Presley, a former Alabama prisoner proceeding pro se, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1).[1] The petition has been referred to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. See S.D. Ala. GenLR 72(b); (electronic referral entered 12/1/2016). After conducting preliminary review of the petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases, it appears that the petition is due to be dismissed, as it plainly appears from the face of the petition and attached exhibits that the petition is time-barred, and Presley is therefore not entitled to relief.

         I. Analysis

         A. Statute of Limitations

         Presley challenges a criminal judgment entered against him by the Circuit Court of Mobile County, Alabama.[2] Because Presley's habeas petition was filed after April 24, 1996, it is subject to application of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S.Ct. 1625 (2013). Among other things, AEDPA imposes the following time limit for bringing habeas petitions:

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 exercise of due diligence.

28 U.S.C. § 2244(d)(1). Nothing in Presley's present petition supports running his one-year limitations period from any of the dates in § 2244(d)(1)(C) and (D).[3]

         Under § 2244(d)(1)(A), Presley ha[d] “one year from the date his judgment of conviction and sentence bec[a]me[] final to file a petition for a writ of habeas corpus in federal court.” Walton v. Sec'y, Florida Dep't of Corr., 661 F.3d 1308, 1310 (11th Cir. 2011) (citing 28 U.S.C. § 2244(d)(1)(A)). However, it appears that Presley's criminal judgment became final sometime in 1991 after the conclusion of his direct appeals.[4] “[F]or all of those prisoners who[, like Presley, ] had completed the direct appeal process before AEDPA, the one-year limitations period began running on the statute's effective date, which was April 24, 1996.” Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1213 n.13 (11th Cir. 2014) (citing Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir. 1998) (per curiam)). Accord Walton, 661 F.3d at 1310.

         “The limitation period is tolled for ‘[t]he time during which a properly filed application for State post-conviction or other collateral review' is pending.” Walton, 661 F.3d at 1310. However, once his AEDPA limitations period began running, Presley did not file a state court petition for post-conviction relief until February 24, 2010, long after his one-year statute of limitation expired on April 24, 1997. (See Doc. 1 at 4, 73). “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.” Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003).[5] Thus, Presley's present habeas petition, filed November 22, 2016, the date he certifies under penalty of perjury that it was delivered to prison officials for mailing, see Rule 3(d) of the Rules Governing Section 2254 Cases, is untimely under § 2244(d)(1)(A).

         While a “statute of limitations defense … is not ‘jurisdictional, ' … district courts are permitted, but not obliged, to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. 198, 205, 209 (2006). Here, the undersigned chooses to raise the statute of limitations defense sua sponte, as it plainly appears that Presley's petition is due to be dismissed as time-barred. See Rule 4 of the Rules Governing Section 2254 Cases (“If[, after preliminary review, ] it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”). “Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. Accordingly, by order dated January 30, 2017 (Doc. 7), the undersigned advised Presley of the above determinations and set a deadline for him to “file with the Court any briefing, evidence, and/or other materials he deems necessary to show why his petition should not be dismissed as time-barred.” The January 30 order also advised Presley of certain equitable exceptions to untimeliness - namely, “equitable tolling” and the “actual innocence” exception established in Schlup v. Delo, 513 U.S. 298 (1995). Presley requested and received three extensions of the deadline to respond to the January 30 order, with the last extension setting the deadline for July 19, 2017 (See Docs. 8, 9, 11, 12, 13, 14). To date, Presley has filed no materials responsive to the January 30 order.

         As the January 30 order acknowledged, Presley's petition offers some argument for why his petition is not time-barred.[6] First, Presley contends that the state courts have reopened his direct appeal under Alabama Rule of Criminal Procedure 32. See Ala. R. Crim. P. 32.1(f) (“[A]ny defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that…[t]he petitioner failed to appeal within the prescribed time from the conviction or sentence itself…and that failure was without fault on the petitioner's part.”); Jimenez v. Quarterman, 555 U.S. 113, 121 (2009) (“[W]here a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet ‘final' for purposes of § 2244(d)(1)(A).”). However, the exhibits attached to Presley's petition, which include documents issued by the Alabama trial and appellate courts related to Presley's Rule 32 proceedings, do not support this contention, and a review of the publicly available docket of Presley's Mobile County criminal case (Case No. 02-CC-1990.000153) through alacourt.com (https://v2.alacourt.com/ (last visited Aug. 2, 2017)) contradicts this contention. In its order dismissing Presley's most recent Rule 32 petition - his fifth, filed October 15, 2014 - the circuit court summarized Presley's previous unsuccessful attempts at Rule 32 relief. (Doc. 1 at 72 - 77). The Alabama Court of Criminal Appeals affirmed the dismissal of Presley's fifth Rule 32 petition in a memorandum ...


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