United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge.
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.
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.
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 By unpublished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.
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
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.
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.
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.
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
Doc. No. 1 at 5.
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.
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.