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Gordon v. Daniels

United States District Court, M.D. Alabama, Northern Division

February 1, 2018

BRAD ELLIOTT GORDON, # 227478, Petitioner,
v.
LEEPOSEY DANIELS, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE.

         This case is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Brad Elliott Gordon (“Gordon”) on March 24, 2016. Doc. No. 1.[1] For the reasons that follow, the Magistrate Judge finds that the § 2254 petition is due to be denied and this case dismissed with prejudice.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On October 27, 2005, a Randolph County jury convicted Gordon of first-degree rape and first-degree sodomy. On December 12, 2005, the trial court sentenced Gordon, as a habitual offender with two prior felony convictions, to serve concurrent terms of life in prison for the rape and sodomy convictions.[2] Gordon appealed, and on August 22, 2008, the Alabama Court of Criminal Appeals affirmed his convictions and sentence. Gordon v. State, 988 So.2d 618 (Ala.Crim.App.2007); see Doc. No. 8-2. There is no record indicating that Gordon sought rehearing in the Alabama Court of Criminal Appeals or filed a petition for writ of certiorari in the Alabama Supreme Court. On September 10, 2008, the Alabama Court of Criminal Appeals issued a certificate of judgment. Doc. No. 8-3.

         Over seven years later, on October 21, 2015 (Doc. No. 8-4), Gordon filed a motion to modify his life sentences under § 13A-5-9.1, Ala. Code 1975, which provides for the reduction of some criminal sentences if certain requirements are met and is applied retroactively according to Kirby v. State, 899 So.2d 968 (Ala. 2004). In addition to invoking § 13A-5-9.1, Ala. Code 1975, Gordon alleged that his life sentences violated his rights to due process and equal protection of the law and the prohibition against cruel and unusual punishment. Doc. No. 8-4 at 2-16.

         The trial court denied Gordon's motion on November 12, 1975. Doc. No. 8-5. Gordon appealed, and on February 11, 2016, the Alabama Court of Criminal Appeals dismissed the appeal as an attempt to appeal from a void ruling, finding that the trial court could not rule on Gordon's motion to modify his sentences because the trial court lost jurisdiction to modify Gordon's sentences 30 days after they were imposed. See Rule 24.1(b) of the Alabama Rules of Criminal Procedure (providing that motion for new trial must be filed within 30 days after imposition of sentence). Doc. No. 8-6.

         In his § 2254 petition, which he filed on March 24, 2016, Gordon contends that the Alabama Court of Criminal Appeals “violat[ed] the Alabama Constitution and the United States Constitution” by dismissing his appeal from the trial court's denial of his motion to modify his sentences as an attempt to appeal from a void, and therefore, non-appealable ruling. Doc. No. 1 at 6 & 10-14.

         II. DISCUSSION

         “[A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). For a federal court to have jurisdiction over a petition for writ of habeas corpus, the petitioner must allege some violation of the United States Constitution or federal law. “‘A state's interpretation of its own laws and rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.' Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983) (citations omitted).” Curry v. Culliver, 141 F. App'x 832, 833-34 (11th Cir. 2005).

         Gordon asserts that the Alabama Court of Criminal Appeals violated the Alabama Constitution and the United States Constitution by dismissing his appeal from the trial court's denial of his motion to modify his sentences under § 13A-5-9.1 on the ground that the trial court's decision was not an appealable ruling. Doc. No. 1 at 6 & 10-14. Both the trial court's denial of Gordon's motion to modify his sentences under § 13A-5-9.1 and the Alabama Court of Criminal Appeals' dismissal of Gordon's appeal, based on its determination that the trial court lacked jurisdiction to modify Gordon's sentences more than 30 days after they were imposed, involved questions solely of state law, i.e., a state court's interpretation of its own laws and rules. As such, Gordon's § 2254 petition presents no basis for federal habeas corpus relief and is subject to dismissal on this ground.[3] See Curry, 141 F. App'x at 834.

         Even if Gordon's § 2254 petition raises constitutional claims cognizable in an action for federal habeas corpus relief, Gordon's challenge to his life sentences is time-barred under the one-year limitation period applicable to habeas petitions, as set forth in 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).[4] Gordon was convicted on October 27, 2005, and he was sentenced on December 12, 2005. He appealed, and on August 22, 2008, the Alabama Court of Criminal Appeals affirmed his convictions and sentence. There is no record indicating that Gordon sought rehearing or filed a petition for writ of certiorari in the Alabama Supreme Court. On September 10, 2008, the Alabama Court of Criminal Appeals issued a certificate of judgment in the direct-review proceedings. Because Gordon did not apply for rehearing in the Alabama Court of Criminal Appeals or file a petition for writ of certiorari in the Alabama Supreme Court, his direct appeal was final on September 10, 2008. See Walker v. State, 194 So.3d 253, 260 (Ala.Crim.App.2015) (citing Rule 41 of the Alabama Rules of Appellate Procedure). Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner's conviction is final at “the conclusion of direct review or the expiration of the time for seeking such review.” Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006) (quoting § 2244(d)(1)(A)). For purposes of federal habeas review and § 2244(a)(1)(A), Gordon had until September 10, 2009, to file his § 2254 petition, absent any statutory or equitable tolling.

         After his direct-review proceedings, Gordon filed no Rule 32 petition in the trial court challenging his convictions and sentence; therefore, he cannot benefit from tolling under 28 U.S.C. § 2244(d)(2).[5] There is also no indication that the statutory tolling provisions of 28 U.S.C. § 2244(d)(1)(B)-(D) or principles of equitable tolling[6] apply in Gordon's case so that the limitation period might be deemed to have expired later than September 10, 2009. Although Gordon couches his claims in “jurisdictional” terms, there is no exception under AEDPA that exempts jurisdictional issues from the application of the limitation period in § 2244(d). See Smith v. Thomas, 2015 WL 2233121, at *5 (M.D. Ala. May 12, 2015). Gordon also contends that he is actually innocent of the crimes of which he was convicted. However, he submits no facts to support that contention.[7]

         Gordon's § 2254 petition was filed over six years after expiration of AEDPA's one-year limitation period. Gordon demonstrates no basis for equitable tolling and makes no showing of actual innocence as a gateway to review of his time-barred claims. Consequently, any constitutional claims raised in his untimely petition are not subject to further review.

         III. ...


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