United States District Court, N.D. Alabama, Eastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
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).
Standard of Review
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).
Analysis of Objections
careful review, the court concludes that Petitioner's
objections all are due to be overruled.
Objections to the Magistrate Judge's Analysis of the
Habeas Petition's Timeliness
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.
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).
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.” 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.
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).
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. (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.
Objections to the Magistrate Judge's Procedural Default
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 ...