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Langford v. Gordy

United States District Court, N.D. Alabama, Northeastern Division

November 20, 2017

RICKEY GLENN LANGFORD, [1] Petitioner,
v.
WARDEN CHRISTOPHER GORDY, and the ATTORNEY GENERAL OF THE STATE OF ALABAMA; Respondents.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          T. MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE.

         This is an action by an Alabama state prisoner pursuant to 28 U.S.C. § 2254, challenging his August 2012 convictions for trafficking in controlled substances, possession of a controlled substance, first-degree possession of marijuana, second-degree assault, and resisting arrest. He is serving a term of life in prison for trafficking with a consecutive life term for assault, two concurrent sentences of 25 years for the possession charges, and one concurrent sentence of one year for resisting arrest. The petitioner, Rickey Glenn Langford, filed his pro se petition for writ of habeas corpus on February 27, 2017.[2] He is incarcerated at the Limestone Correctional Facility in Harvest, Alabama. In accordance with the usual practices of this court and 28 U.S.C. § 636(b), the matter was referred to the undersigned magistrate judge for a preliminary review and recommendation.

         PROCEDURAL HISTORY

         On August 29, 2012, petitioner was found guilty of trafficking, possession, resisting arrest, and second-degree assault.[3] He was sentenced to two consecutive terms of life imprisonment on the trafficking and assault charges, and to two concurrent terms of 25 years for the possession charges, along with a concurrent term of one year for resisting arrest. He appealed, raising the following issues: (1) that the search warrant was invalid because it was issued by a magistrate from another jurisdiction, and (2) that the trial court erred in failing to exclude testimony regarding the weight of the oxycontin pills made the basis of the drug charges based upon the failure of the prosecution to lay a proper foundation. (Doc. 5-11, p. 10). His conviction was affirmed by the Alabama Court of Criminal Appeals on October 25, 2013, which held that the search warrant issue was not jurisdictional and had not been properly preserved for appeal, and that the admission of the testimony regarding the weight of the drugs was not erroneous. (Doc. 5-14). He sought rehearing, which was denied, and he sought review in the Alabama Supreme Court, raising the single issue of whether the search warrant challenge could be raised for the first time on appeal. The state supreme court denied his petition for writ of certiorari on February 14, 2014.

         On February 2, 2015, petitioner filed a Request to Proceed In Forma Pauperis in the Madison County Circuit Court.[4] The request was summarily denied on February 9, 2015. On February 20, 2015, he filed a motion for leave to proceed in forma pauperis in the Alabama Court of Criminal Appeals, which treated the motion as a petition for writ of mandamus that sought to compel the circuit court to grant his motion for in forma pauperis status. Petitioner signed a certificate of service, specifically indicating that he had served the Clerk of Court for Madison County and the Clerk of Court for the Alabama Court of Criminal Appeals. More generally, however, he stated that he had served a copy “upon all parties.” (Doc. 5-18). On March 5, 2015, the appellate court notified petitioner that he was ordered to file a certificate of service within 14 days that complied with the service requirement of Rule 21(a) of the Alabama Rules of Appellate Procedure. (Doc. 5-19). He then filed a brief in support of his petition for writ of mandamus, indicating that he had served the Clerk of Court for the Court of Criminal Appeals and the attorney general. (Doc. 5-20). He also filed a “Motion to File Lesser Number of Copies Pursuant to Ala. R. App. P. Rule 2(b)” on March 13, 2015, in which he sought “permission to file a lesser number of copies with the Clerk of this Honorable Court serving the remaining parties.” (Doc. 5-21). The motion was granted; however, on April 2, 2015, the appellate court dismissed the petition for failure to comply with the service requirements. He filed another petition for writ of mandamus in the Alabama Supreme Court on April 29, 2015, which was denied on June 24, 2015.

         On December 21, 2015, petitioner filed a petition for writ of habeas corpus in the Limestone County Circuit Court (the court of the county in which he was incarcerated). The petition was treated as a petition filed pursuant to Alabama Rule of Criminal Procedure 32, and was transferred to the Madison County Circuit Court. The Madison County Circuit Court dismissed the petition as untimely, and as barred by “various provisions” of Rule 32.2. Langford appealed to the Alabama Court of Criminal Appeals, which affirmed the denial of the petition, stating that the Rule 32 petition was untimely filed and was precluded. He did not timely seek rehearing, and a certificate of judgment was issued on September 21, 2016. He filed a motion in the Alabama Court of Criminal Appeals seeking relief under Rule 60(b)(6)(1) after the certificate of judgment was entered, but no action was taken by the court. He then filed a petition for writ of certiorari in the Alabama Supreme Court, which was struck as improperly filed on November 17, 2016.

         On February 27, 2017, petitioner filed the instant habeas petition in this court challenging the convictions, asserting that: (1) the conviction was the consequence of an illegal search and seizure in violation of the Fourth Amendment; (2) he was actually innocent of the crime he was convicted of, resulting in a violation of his Due Process and Equal Protection rights; (3) he received ineffective assistance of counsel in that his attorney at trial failed to challenge the search warrant; and (4) his conviction was obtained in violation of the Supremacy Clause. (Doc. 1, pp. 10-11). Pursuant to this court's order to show cause, the respondents filed an answer on March 22, 2017, supported by exhibits, asserting that petitioner's claims are time-barred, procedurally defaulted, and otherwise without merit. By order dated the same date, the parties were notified that the petition would be considered for summary disposition, and the petitioner was notified of the provisions and consequences of this procedure under Rule 8 of the Rules Governing Section 2254 Cases. After seeking and receiving an extension of time in which to file a response, petitioner filed a response on May 3, 2017.

         TIMELINESS

         The respondents assert that the instant petition is untimely pursuant to 28 U.S.C. § 2244(d). The provision, enacted April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act of 1996, established for the first time a one-year deadline for the filing of habeas actions under ' 2254 challenging the validity of state criminal convictions. The one-year limitation runs from the latest of any of four dates, as set forth below:

(d)(1) 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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