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Denny v. Billups

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

June 13, 2018

TIMOTHY SCOTT DENNY, # 290082, Petitioner,
v.
PHYLLIS BILLUPS, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker, United States Magistrate Judge.

         This case is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama prisoner Timothy Scott Denny (“Denny”). Doc. No. 1.[1]

         I. BACKGROUND

         On March 5, 2013, a Lee County jury found Denny guilty of second-degree rape, in violation of § 13A-6-62, Ala. Code 1975. Doc. No. 8-1 at 13. After a sentencing hearing on May 15, 2013, the trial court sentenced Denny to 17 years in prison. Id. at 14.

         Denny appealed, arguing that the trial court erred in allowing the State to introduce evidence of his other bad acts that was more prejudicial than probative. Doc. No. 8-3. By unpublished memorandum opinion issued on March 14, 2014, the Alabama Court of Criminal Appeals affirmed Denny's conviction and sentence. Doc. No. 8-4. Denny's application for rehearing was overruled on April 4, 2014. Doc. Nos. 8-5 & 8-6. The Alabama Court of Criminal Appeals issued a certificate of judgment on April 23, 2014. Doc. No. 8-7. On July 21, 2014, Denny filed a petition for writ of certiorari with the Alabama Supreme Court. On August 14, 2014, that court denied Denny's petition for certiorari as untimely filed. See Ala.R.App.P. 39(c)(2) (providing that the petition for writ of certiorari must be filed with the Alabama Supreme Court within 14 days of the Alabama Court of Criminal Appeals' decision on the application for rehearing). Doc. No. 8-8.

         On August 22, 2014, Denny filed a petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. Doc. No. 8-9. In that petition, Denny presented claims that his trial counsel rendered ineffective assistance by (1) failing to communicate the State's plea offer of 60 months in prison to him, (2) failing to call certain witnesses who could have provided testimony beneficial to his defense, and (3) failing to present evidence that he suffered from erectile dysfunction and was therefore incapable of committing the alleged offense. Id.

         On January 5, 2015, while Denny's Rule 32 petition was pending in the trial court, Denny filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 with this court presenting various claims of trial court error and ineffective assistance of counsel. See Denny v. Billups, Civil Action No. 3:15cv38-WKW. On April 14, 2015, this court dismissed the § 2254 petition without prejudice because Denny's Rule 32 petition was still pending in the state courts and he had not yet exhausted his available state court remedies regarding his claims of ineffective assistance of counsel. Id.

         On September 28, 2015, the trial court entered an order denying Denny's Rule 32 petition, finding that his claims of ineffective assistance of counsel failed to meet the standard of Strickland v. Washington, 466 U.S. 668 (1984), and that all his claims lacked merit. Doc. No. 8-11. Denny filed no notice of appeal until May 11, 2016-over seven months after the trial court had denied his Rule 32 petition. Doc. No. 8-12. On May 23, 2016, the Alabama Court of Criminal Appeals entered an order allowing Denny 14 days to show cause why his appeal should not be dismissed as untimely. Doc. No. 8-16. Denny filed a response vaguely asserting that the prosecutor was now the circuit court clerk and had a conflict of interest in filing motions, and that the trial court's order denying his Rule 32 petition was “misleading.” Doc. No. 8-17. On June 2, 2016, the Alabama Court of Criminal Appeals dismissed Denny's appeal as untimely filed and issued a certificate of judgment in the case. Doc. Nos. 8-18 & 8-19.

         On June 10, 2016, Denny filed a petition for writ of certiorari with the Alabama Supreme Court. Doc. No. 8-20. The petition for certiorari set forth no grounds for relief. On July 1, 2016, the Alabama Supreme Court ordered Denny's petition for certiorari stricken as untimely filed since his appeal was untimely. Doc. No. 8-22.

         On August 9, 2016, Denny initiated this federal habeas action by filing a § 2254 petition asserting as his sole ground for relief that his trial counsel was ineffective for failing to communicate the State's alleged plea offer to him.[2] Doc. No. 1 at 5.

         The respondents contend that Denny's claim is unexhausted and procedurally defaulted because he failed to present the claim through one complete round of state court appellate review in his appeal from the denial of his Rule 32 petition, and he may no longer return to state court to exhaust the claim. Doc. No. 8 at 5-8.

         Upon consideration of the parties' submissions, the record, and the pertinent law, the undersigned finds that Denny is not entitled to habeas relief because his claim is procedurally barred from federal review; therefore, his § 2254 petition should be denied without an evidentiary hearing. See Rule 8(a) of the Rules Governing Section 2254 Cases in United States District Courts.

         II. DISCUSSION

         A. ...


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