United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
habeas corpus case was filed on or about January 2, 2017,
pursuant to 28 U.S.C. § 2254 by Petitioner Bryan Lee
Daniel, an Alabama state prisoner acting pro se.
(Doc. 1 (“Petition” or
“Pet.”)). Incarcerated at the Limestone
Correctional Facility in Harvest, Alabama, Daniel challenges
his 1989 guilty-plea convictions on two counts of intentional
murder, in violation of Ala. Code § 13A-6-2(a)(1), for
which he is serving two consecutive life sentences.
(Id.) The magistrate judge to whom the case was
referred entered a report and recommendation
(“R&R”) concluding that Daniel's habeas
petition is barred by the one-year statute of limitations, 28
U.S.C. § 2244(d). (Doc. 4). Daniel has filed a 32-page
objection (Doc. 9), which includes a declaration from the
fellow inmate who has prepared Daniel's filings in this
court. (Id. at 32). The court discerns Daniel's
objection to contain arguments that can be broken down into
four sections. They are addressed in turn below.
first objects to the magistrate judge's having raised the
statute of limitations sua sponte, without having
the State respond to the petition. (Doc. 9 at 5-8). However,
the court has discretion to address issues where, as here,
the State has not waived the defense. See Day v.
McDonough, 547 U.S. 198, 207-11 (2006); Jackson v.
Secretary for DOC, 292 F.3d 1347, 1349 (11th Cir. 2002).
Indeed, raising the timliness issue is particularly
appropriate here given that, under 28 U.S.C. §
2244(d)(1)(A), the limitations period on Daniel's claims
only extended one year past the date his murder convictions
became final in April 1996,  and Daniel did not file this
action until January 2017, or more than 19 years too
late absent tolling of the limitations period. Further,
Daniel has suffered no unfair prejudice because he has been
afforded notice and an opportunity to challenge the time bar
in his objections to the R&R, prior to any final
adjudication by the court. See Day, 547 U.S. at
210-11; Campos v. United States, 2016 WL 6821134, at
*1 n. 5 (N.D.Ga. Aug. 10, 2016), report and
recommendation adopted, 2016 WL 6805305 (N.D.Ga. Nov.
15, 2016). This objection lacks merit.
next disputes the magistrate judge's determination that
the petition is not saved by equitable tolling of the
limitations period. (Doc. 9 at 8-19). A habeas petitioner is
“‘entitled to equitable tolling' only if he
shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Equitable tolling, however, is “an
extraordinary remedy” that “is typically applied
sparingly.” Arthur v. Allen, 452 F.3d 1234,
1252 (11th Cir. 2006). At the pleading stage, the petitioner
has the burden to allege facts that are “specific and
not conclusory” and that, if true, would justify
tolling for a period sufficient to render the petition timely
filed. Hutchinson v. Florida, 677 F.3d 1097, 1099
(11th Cir. 2012); see also Lugo v. Secretary, Fla.
DOC, 750 F.3d 1198, 1209 (11th Cir. 2014); Chavez v.
Secretary, Fla. DOC, 647 F.3d 1057, 1073 (11th Cir.
claim of equitable tolling is based on an alleged mental
impairment. The magistrate judge acknowledged that, under
Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009),
equitable tolling may apply where a petitioner pleads and
proves specific facts supporting both (1) that he suffers
from a substantial mental impairment and (2) that such
impairment actually prevented him from being able to file his
federal habeas petition within the statute of limitations.
Id. at 1308; see also Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005), aff'd, 549
U.S. 327 (2007). The magistrate judge concluded, however,
that Daniel's “generalized allegations that he
suffers from a mental impairment for which he has been
prescribed Xanax” fall far short of establishing
equitable tolling, particularly for long enough to overcome
the fact that his petition is otherwise untimely by over 19
years. (R&R at 8). Daniel disputes that determination on
both substantive and procedural grounds.
substance, Daniel first claims that he is entitled to
equitable tolling based on repeated assertions that, both at
the time of the killings in April 1989 and when he pled
guilty in September 1989, he was allegedly under the
influence of Xanax, a brand name for the prescription
anti-anxiety drug Alprazolam. (See Doc. 9 at 4, 10,
15-19, 21). Daniel says that since before he committed the
crimes, he had been taking the medication for “mental
problems” that caused him to “hav[e] delusions,
hear[ ] voices and [be] depressed.” (Id. at
10; see also Id. at 4 (“Daniel was prescribed
and under the influence of Xanax while incarcerated in the
Dekalb County Jail [awaiting trial] because of hi[s] hearing
voices, and seeing thing[s] which were not there.”)).
Daniel further argues that the magistrate judge's
rejection of his equitable tolling claim
“overlooks” the fact that, at the time of the
killings, Daniel was not only taking Xanax but also had been
“consuming alcohol in substantial amounts.”
(Id. at 15). Citing expert testimony discussed in
Lucas v. Warden, Ga. Diagnostic & Classification
Prison, 771 F.3d 785, 796 (11th Cir. 2014), and
Pitonyak v. Stephens, 732 F.3d 525, 528-30 (5th Cir.
2013), Daniel posits that consuming Xanax and alcohol
together “literally drives [people] insane, it almost
destroys a person[']s reasoning, judgment, and can cause
the person to commit violent crimes.” (Doc. 9 at 16).
allegations, however, miss the mark because Daniel's
claim of equitable tolling does not depend on his level of
intoxication, criminal culpability, or mental status in 1989
when he committed the murders or when he pled guilty. Rather,
under Hunter, Daniel must establish that he suffered
from a substantial mental impairment that prevented him from
being able to file a timely federal habeas corpus petition.
As such, the relevant time frame for his claim of equitable
tolling is the period after the statute of limitations would
have commenced running on April 24, 1996, AEDPA's
effective date, up through, at the latest, when Daniel filed
this federal habeas corpus action on or about January 2,
2017. See Peterson v. Secretary, Fla. DOC, 631 F.
App'x 664, 666 (11th Cir. 2015) (“The only period
of time relevant to our equitable tolling analysis is ...
while the statute of limitations clock was still running and
there was time left to be tolled.”); Moore v.
Frazier, 605 F. App'x 863, 866-67 (11th Cir. 2015)
(circumstances occurring before the limitations began to run
could not justify equitable tolling); Lugo, 750 F.3d
at 1209-10 (events occurring after the limitations period
expired were not probative of the petitioner's diligence
before the limitations period expired).
Daniel's burden is a heavy one because he must allege
specific facts reasonably supporting that, because of a
substantial mental impairment, during no one year period of
untolled time in the 20-plus years between April 24, 1996 and
January 2, 2017 could he have filed a § 2254 petition.
To that end, Daniel's claim that he was under the
influence of Xanax, alone or along with alcohol, when he
killed the victims and when he pled guilty in 1989 means
little to nothing. See Smith v. Jones, 2015 WL
521067, at *10 (N.D. Fla. Feb. 9, 2015) (petitioner's
allegations that he was under the influence of
“‘heavy doses' of antipsychotic and
psychotropic medications” for several years prior to
the effective date of AEDPA could not support equitable
only allegations that bear on the time period after April 24,
1996 are relevant. In that vein, Daniel does assert in his
habeas application that, since sometime before committing the
murders in April 1989, he had suffered from “mental
problems of having delusions, hearing voices, and being
depressed, ” for which he had been prescribed Xanax.
(Doc. 1 at 9). That circumstance could have some probative
value, but only insofar as it might further be reasonably
found both (1) that Daniel continued to experience such
mental problems into and well beyond 1996, and (2) that his
associated symptoms were so severe they materially limited
his ability to file a federal habeas petition. However,
nothing in Daniel's petition might even arguably support
the court recognizes that Daniel's objection to the
R&R does include some allegations to the effect that he
has a persistent mental impairment and that he has
experienced other obstacles to filing since going to prison.
Those allegations are as follows:
Daniel is cognitively challenged, suffers from mental disease
or defect, he is incarcerated, indigent and has been without
counsel since his convictions in State Court, and [he] is
totally and completely incapable of preparing his own
petitions and pleadings pro-se (sic). Daniel has had to rely
solely and entirely upon another inmate, who out of the
goodness of his heart, agreed to prepare Daniel's
petitions and pleadings for him in the State and Federal
Courts in his case.
(Doc. 9 at 19).
addition, the inmate who prepared Daniel's filings,
Timothy J. Richards, has submitted a declaration under 28