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Lynch v. Myers

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

February 1, 2018

McARTHUR LYNCH, JR., # 179533, Petitioner,
v.
WALTER MYERS, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This 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.[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).[2] 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 hearing.

         II. BACKGROUND AND PROCEDURAL HISTORY

         On 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).[3] 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.

         Lynch appealed, and on August 23, 2013, the Alabama Court of Criminal Appeals affirmed his convictions and sentence by unpublished memorandum opinion.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.

         On 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.

         While 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.

         On 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.

         While 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 court's judgment.

         On June 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 via https://v2.alacourt.com/).

         Lynch filed this § 2254 petition on January 26, 2016. Doc. No. 1.[4] 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.

         On 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.

         Around 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. No. 23.

         The 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.

         III. ...


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