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Dansby v. Estes

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

March 1, 2018

JERRY LEE DANSBY, AIS 168953, Petitioner,
v.
WARDEN ESTES, Respondent.

          REPORT AND RECOMMEDATION

          P. BRADLEY MURRAY, UNITED STATES MAGISTRATE JUDGE

         Jerry Lee Dansby, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 6.) This matter has been referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 72 of the Federal Rules of Civil Procedure, and General Local Rule 72(a)(2)(R). It is recommended that the instant petition be dismissed as time-barred under the Anti-Terrorism and Effective Death Penalty Act's one-year limitations period contained in 28 U.S.C. § 2244(d).[1]

         PROCEDURAL HISTORY

         Dansby entered a guilty plea and was convicted of murder and robbery in the Circuit Court of Marengo County, Alabama in 1992. (Doc. 6 at p. 2). He was sentenced to a life sentence without the possibility of parole. (Id.). Dansby did not appeal his conviction. (Id. at p. 3). Prior to the instant petition, Dansby has never filed a Rule 32 petition or any other petition, application, or motion challenging his conviction or sentence. (Id.). On September 7, 2017, twenty-five years after his conviction, Dansby filed this § 2254 petition challenging his 1992 conviction and sentence. (Doc. 1).

         PETITIONER'S CLAIMS

         In his petition, Dansby raises several claims. First, he claims that his conviction was obtained by a plea of guilty which was not made with an understanding of the consequences of the plea. (Doc. 6 at p. 6). Second, he claims that his conviction was obtained by use of a coerced confession because no Miranda warning was given, by use of promises about the time he would receive, and by threats from federal investigators. (Doc. 6 at p. 7). Third, he claims that his conviction was obtained by a violation of the privilege against self-incrimination because no Miranda warning was given and he was not told that he could have his lawyer present at the time he gave his statement. (Doc. 6 at p. 8). Fourth, he claims that he was denied effective assistance of counsel because his lawyer told him that he couldn't appeal his sentence. (Doc. 6 at p. 8). Finally, he claims that the trial court was without jurisdiction to sentence him as a habitual felony offender after his guilty plea. (Doc. 6 at p. 9).

         Dansby contends that the one-year statute of limitations contained in 28 U.S.C. § 2244(d) does not bar his habeas corpus petition because his lawyer at the time told him that he could not appeal his conviction and he did not understand the law until he learned to read better and started going to the prison law library. (Doc. 6 at p. 12). He claims that he never had a chance to refute the claims or to prove that his constitutional rights were violated. (Id.). He argues that there should not be a time limitation “when your [sic] fighting for your freedom” and that every person has a right to fight their conviction and a right to trial by jury. (Id.). On October 24, 2017, this Court entered an order advising Dansby that his claim appeared to be barred by the statute of limitations and giving him an opportunity to show cause why his case should not be recommended for dismissal. (Doc. 8). On November 9, 2017, Dansby filed a response to the show cause order, but did not include any additional facts or law supporting his position that the statute of limitation should be equitably tolled. (Doc. 9).

         CONCLUSIONS OF LAW

         A district court has the power under Rule 4 of the Rules Governing Section 2254 Cases “to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999); see Jackson v. Sec'y for the Dep't of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (holding that “the district court possessed the discretion to raise sua sponte the timeliness issue”); Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002) (finding that “[e]ven though the limitations period is an affirmative defense, a federal habeas court has the power to raise affirmative defenses sua sponte, as the district court did in this case”). Rule 4 provides, in pertinent part, that “[i]f 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.” 28 U.S.C. foll. § 2254, Rule 4.

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted on April 24, 1996, and pertinent to this case, added a new subdivision to 28 U.S.C. § 2244 providing for a one-year period of limitations within which state prisoners must file their habeas corpus petitions pursuant to 28 U.S.C. § 2254. See Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). Section 2244(d) provides:

(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 ...

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