United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
Alabama inmate McArthur Lynch, Jr. (“Lynch”) on
January 26, 2016. Doc. No. 1. Lynch challenges his 2012
conviction and resulting sentence for two counts of sexual
abuse of a child under the age of 12, attempted first-degree
sodomy, and violation of Alabama's Community Notification
Act. The respondents argue that Lynch's § 2254
petition should be dismissed on the ground it was not timely
filed under the one-year limitation period in 28 U.S.C.
§ 2244(d). Doc. No. 6 at 5-12. The court agrees with
the respondents and finds that Lynch's petition is
time-barred and should be denied without an evidentiary
BACKGROUND AND PROCEDURAL HISTORY
November 7, 2012, a Randolph County jury found Lynch guilty
of two counts of sexual abuse of a child under the age of 12
(§ 13A-6-69.1, Ala. Code 1975), attempted first-degree
sodomy (§§ 13A-4-2 & 13A-6-63, Ala. Code 1975),
and violation of the Community Notification Act (§
15-20-23, Ala. Code 1975). On November 29, 2012, Lynch was
sentenced as a habitual felony offender to 30 years'
imprisonment for each of the sexual abuse and sodomy counts
and 15 years' imprisonment for the Notification Act
violation, all sentences to run concurrently. Doc. No. 6-1 at
3 & 9-10.
appealed, and on August 23, 2013, the Alabama Court of
Criminal Appeals affirmed his convictions and sentence by
unpublished memorandum opinion. Doc. No. 6-4. Lynch did not
apply for rehearing with the Alabama Court of Criminal
Appeals or seek certiorari review in the Alabama Supreme
Court. On September 11, 2013, the Alabama Court of Criminal
Appeals issued a certificate of judgment. Doc. No. 6-5.
March 14, 2014, Lynch submitted a pro se petition in
the trial court seeking relief from his convictions and
sentence under Rule 32 of the Alabama Rules of Criminal
Procedure. Doc. No. 6-1 at 11; Doc. No 6-6. The petition was
not accompanied by a filing fee or an application to proceed
in forma pauperis. Consequently, the trial court
ordered the circuit clerk to return the petition to Lynch,
noting that he “shall use the proper forms and submit
the required filing fee or request to proceed in forma
pauperis.” Doc. No. 6-1 at 11; Doc. No. 6-7. Lynch
appealed the trial court's order. Doc. No. 6-1 at 11;
Doc. No. 6-8. However, the Alabama Court of Criminal Appeals
dismissed the appeal as stemming from a non-appealable order
and issued a certificate of judgment on December 15, 2014.
Doc. Nos. 6-8, 6-9 & 6-10.
the above-noted proceeding was pending, Lynch, on November
11, 2014, filed a “petition for review and
reconsideration of sentence” with the trial court,
asking the court to reconsider his sentence in light of
§ 13A-5-9.1, Ala. Code 1975, and Kirby v.
State, 899 So.2d 968 (Ala. 2004). The trial court denied
that petition on December 15, 2014. Doc. No. 6-12. Lynch did
not appeal that ruling.
March 13, 2015, Lynch submitted a second pro se Rule
32 petition. Doc. Nos. 6-13 & 6-14. On March 23, 2015,
the trial court dismissed the petition, noting that Lynch,
once again, had not paid a filing fee or submitted a request
for in forma pauperis status with his petition Doc.
No. 6-13 at 5; Doc. No. 6-15. Lynch initially attempted to
appeal the trial court's order, but then moved to dismiss
the appeal. Doc. No. 6-16. On May 21, 2015, the Alabama Court
of Criminal Appeals dismissed the appeal and issued a
certificate of judgment. Doc. Nos. 6-17 & 6-18.
the foregoing proceeding was pending, Lynch, on March 27,
2015, filed another pro se Rule 32 petition with the
trial court, this time accompanied by an application to
proceed in forma pauperis. Doc. Nos. 6-19 &
6-20. The trial court granted Lynch's in forma
pauperis request. Doc. No. 6-21. In his Rule 32
petition, Lynch argued that the jury venire for his trial was
not sworn, that one of the seated jurors in his trial should
have been struck for cause, that the indictment listed the
“wrong victim” and “wrong crime, ”
that certain testifying witnesses should have been excluded
from the courtroom during the testimony of other witnesses,
that a State's witness testified falsely, and that the
State's “biological evidence” was not
adequately tested and DNA testing should have been performed
on the victim. Doc. No. 6-20 at 5-6. On March 31, 2015, the
trial court entered an order denying Lynch's Rule 32
petition, finding that Lynch's claims lacked merit. Doc.
No. 6-19 at 4; Doc. No. 6-22. Lynch did not appeal the trial
15, 2015, Lynch filed yet another pro se Rule 32
petition, again with an in forma pauperis request.
Doc. Nos. 6-23 & 6-24. The trial court granted the in
forma pauperis request and directed the State to respond
to the Rule 32 petition. Doc. No. 6-25. That Rule 32 petition
was pending when Lynch filed this instant habeas petition.
See Doc. No. 6-23. The trial court denied the Rule
32 petition on September 15, 2016. See Docket of
Randolph County Circuit Court Case No. CC-12-85.62 (available
filed this § 2254 petition on January 26, 2016. Doc. No.
In his petition, he presents claims that (1) the State failed
to disclose a statement from the victim's mother that
could have been used to impeach her trial testimony; (2) his
multiple convictions violated the constitutional prohibition
against double jeopardy; (3) his indictment was amended,
causing him to be convicted of an offense for which he was
not indicted; and (4) the charges against him were false
because “it was a made up case” and witnesses
against him were not truthful. Doc. No. 1 at 6-8.
March 18, 2016, Lynch filed an amendment to his petition,
adding claims that (1) one of the jurors in his trial should
have been struck for cause; (2) the indictment listed the
wrong victim and wrong crime; and (3) a State's witness,
a police officer, testified falsely. Doc. No. 14 at 5-10.
February 22, 2017, Lynch filed a § 2254 petition in the
United States District Court for the Northern District of
Alabama attacking the same Randolph County convictions and
sentence he attacks in the instant § 2254 petition.
See Lynch v. Estes, Civil Action No.
4:17cv317-LSC-SGC (N.D. Ala. 2017). In that petition, Lynch
repeats the claims presented in the § 2254 petition and
amendment he filed in this court and appears to add several
new claims of trial error. In November 2017, after noting
that Lynch had a § 2254 petition pending in this court
and finding that justice would be best-served by transferring
the matter to this court, the United States District Court
for the Northern District of Alabama transferred Lynch's
February 2017 habeas petition to this court. See Lynch v.
Estes, Civil Action No. 3:17cv794-WHA-SRW (M.D. Ala.
2017), Doc. Nos. 3 & 4. Because Lynch had a § 2254
petition pending in this court, this court docketed the
transferred habeas petition as an amendment to Lynch's
§ 2254 petition in the instant action. Id.,
Doc. No. 6; see Civil Action No. 3:16cv73-WKW, Doc.
respondents argue that Lynch's § 2254 petition was
not timely filed and that all claims in his petition and in
his amendments are time-barred under the one-year limitation
period in 28 U.S.C. § 2244(d). Doc. No. 6 at 5-12; Doc.
No. 18 at 1-4.