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Daniel v. Gordy

United States District Court, N.D. Alabama, Middle Division

March 13, 2018

WARDEN CHRISTOPHER GORDY, et al., Respondents.



         This 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] 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.


         Daniel 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, [2] 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.


         Daniel 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. 2011).

         Daniel's 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.

         As to 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).

         Such 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).

         So, 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 tolling).

         Rather, 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 either inference.

         Nevertheless, 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).

         In addition, the inmate who prepared Daniel's filings, Timothy J. Richards, has submitted a declaration under 28 U.S.C. ...

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