Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Averett v. Estes

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

July 3, 2018

CORRY RODRIGUEZ AVERETT, Petitioner,
v.
DEWAYNE ESTES, Warden, et al., Respondents.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This is an action for a writ of habeas corpus filed by Petitioner Corry Rodriguez Averett, pro se, on or about February 23, 2017. (Doc. # 1). Averett challenges his 2013 murder conviction in the Talladega County Circuit Court. (Id. at 1-2). On May 25, 2018, the Magistrate Judge to whom the case was referred entered a report and recommendation pursuant to 28 U.S.C. § 636(b), recommending that habeas relief be denied. (Doc. # 19). Averett has filed timely objections to the report and recommendation. (Doc. # 20).

         I. Standard of Review

         The court reviews objected-to factual and legal rulings of a Magistrate Judge's report and recommendation de novo. Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989). The court reviews those portions that are not specifically objected to under the plain error standard. See 11th Cir. R. 3-1. (See also Doc. # 19 at 25) (warning Petitioner that his failure to object would bar further review, except for plain error).

         II. Analysis of Objections

         After careful review, the court concludes that Petitioner's objections all are due to be overruled.

         A. Objections to the Magistrate Judge's Analysis of the Habeas Petition's Timeliness

         In his objections to the report and recommendation, Petitioner argues that he received a letter from the Alabama Court of Criminal Appeals confirming his submission of a post-conviction habeas petition to the Talladega Circuit Court in February 2015. (Doc. # 20 at 3, 6). Petitioner also argues that his submission of the post-conviction petition is evidenced by certified mail receipts he obtained for a mailing sent to the Talladega County District Attorney's Office. (Id. at 3, 8-9). These objections challenge the Magistrate Judge's finding that the record lacks substantial evidence that a habeas petition was filed by Petitioner in February 2015. (See Doc. # 19 at 11). After careful review, the court agrees with the Magistrate Judge that Petitioner's limitations period was not tolled by the February 2015 circuit-court filing referenced in his 28 U.S.C. § 2254 petition. However, more discussion is required on this point.

         Petitioner asserts in his pending habeas petition, which was signed under penalty of perjury, that he submitted a habeas petition to the Talladega Circuit Court in February 2015. (Doc. # 1 at 3, 17). He avers that he mailed one copy to the Talladega County Circuit Clerk and informational copies to the Alabama Court of Criminal Appeals and the Talladega County District Attorney's Office. (Id. at 14-15). On February 18, 2015, the clerk of the Court of Criminal Appeals sent Petitioner a letter acknowledging its receipt of the habeas petition filed with the Talladega Circuit Court, but returned the informational copy because the Court of Criminal Appeals did not retain informational copies. (Doc. # 20 at 6). When Petitioner failed to receive a response from the Talladega Circuit Court, he filed a habeas petition with the Alabama Court of Criminal Appeals in April 2015, which was dismissed in July 2015 because the Court of Criminal Appeals lacked original jurisdiction over the petition. (See Docs. # 8-27 at 2; 8-28; 8-29 at 2). Ultimately, in 2016, Petitioner asked for a status update from the Talladega Circuit Court, and the court informed Petitioner in a February 2016 order that it could not find any habeas pleadings filed by him. (See Doc. # 8-32 at 2).

         Petitioner has argued (at least implicitly) that the February 2015 habeas petition he sent to the Talladega Circuit Court justifies tolling of his one-year limitations period. See 28 U.S.C. § 2244(d)(2) (discussing statutory tolling for state prisoners who have properly filed an application for state-court post-conviction relief). To address that argument, the court must decide whether the February 2015 petition was “properly filed.”[1] As the Supreme Court has stated, “[a]n application is ‘filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). “And an application is ‘properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Id. (emphasis in original). The Eleventh Circuit discussed Artuz's definition of filing an application in Sibley v. Culliver, 377 F.3d 1196, 1201-02 (11th Cir. 2004). In Sibley, the Eleventh Circuit determined that the Alabama petitioner failed to file his application with the circuit court because it was sent to the Alabama Supreme Court, not the circuit court. Id. at 1201. Here, in contrast, at this stage the court must accept that Petitioner filed the habeas petition in February 2015 because he avers that he sent it to the proper court. (Doc. # 1 at 3, 14-15). This conclusion is supported by Alabama's mailbox rule, which states “that a pro se incarcerated [petitioner] is considered to have ‘filed' a Rule 32 petition . . . when [that document is] given to prison officials for mailing.” Ex parte Allen, 825 So.2d 271, 272 (Ala. 2002). In light of Alabama's mailbox rule, the court finds substantial evidence that Petitioner “filed” a post-conviction habeas petition with the Talladega Circuit Court in February 2015 when he handed it over to prison authorities for mailing.

         Nevertheless, the undersigned agrees with the Magistrate Judge that the February 2015 petition did not toll the one-year federal statute of limitations because the evidence before the court does not show that Petitioner properly filed a habeas petition with the Talladega Circuit Court. Alabama law requires a prisoner filing a post-conviction motion to include either (1) a filing fee or (2) an “In Forma Pauperis Declaration . . . accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner's credit in any account in the institution for the previous twelve (12) months.” Ala. R. Crim. P. 32.6(a). In Sibley, the Eleventh Circuit held that the petitioner's post-conviction filing was not “properly filed” because the record lacked any evidence that the petitioner had included a filing fee or an in forma pauperis petition with the post-conviction filing. 377 F.3d at 1204. Here, as in Sibley, Petitioner has offered no evidence that he submitted a filing fee or a complete in forma pauperis application alongside his February 2015 circuit court habeas petition. Therefore, the court concludes that Petitioner's February 2015 circuit court habeas petition was not properly filed and did not trigger a statutory tolling period under § 2244(d)(2). See Id. See also Smith v. Comm'r, Ala. Dep't of Corr., 703 F.3d 1266, 1270 (11th Cir. 2012) (concluding that an Alabama post-conviction petition was not properly filed because the petitioner did not include a filing fee or an in forma pauperis petition), cert. denied, 571 U.S. 992 (2013).

         Petitioner's objections do not contest the Magistrate Judge's conclusions that an April 2015 petition filed with the Alabama Court of Criminal Appeals was not properly filed and that circuit court petitions filed in July 2016 and December 2016 could not have tolled the already-expired limitations period.[2] (See Doc. # 19 at 10-14). The court finds no plain error in these rulings and affirms them. Petitioner also raises no specific objection to the Magistrate Judge's conclusion that he is not entitled to equitable tolling. (See Id. at 14-15). The court finds no plain error in that conclusion and affirms it as well. Finally, Petitioner raises no specific objection to the Magistrate Judge's conclusion that the Brady and Giglio claims are time-barred under the statute of limitations provided in 28 U.S.C. § 2244(d)(1)(D) because Petitioner has failed to show that he acted diligently to discover the underlying evidence. (See Id. at 19-20). The court finds no plain error in that conclusion. Accordingly, all of Petitioner's claims in his § 2254 petition are due to be dismissed as untimely.

         B. Objections to the Magistrate Judge's Procedural Default Ruling

         In his objections to the report and recommendation, Petitioner argues that he can show cause for his failure to raise the Brady and Giglio claims earlier because his counsel attempted to obtain evidence about any agreements reached between two witnesses -- Chantley Williams and Thomas Birt -- and the state government or federal government. (Doc. # 20 at 3). But, Petitioner claims that counsel for the state of Alabama withheld information about plea agreements reached between these witnesses and the federal government. (Id.). Petitioner insists that the prosecution's withholding of the evidence prejudiced him by preventing him “from receiving a fair trial.” (Id.). The Magistrate Judge concluded that the cause and prejudice exception to procedural default did not apply to Petitioner's Brady and Gig ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.