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Baker v. Bolling

United States District Court, S.D. Alabama, Southern Division

October 2, 2018

SIDNEY JAMES BAKER, AIS #00199075, Petitioner,
v.
LEON BOLLING, Warden, Fountain Correctional Facility, Respondent.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on the operative petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 3) filed by Petitioner Sidney James Baker, an Alabama prisoner proceeding pro se.[1] The Court has referred the petition to the undersigned Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b); (10/5/2017 electronic reference). Under S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

         After conducting preliminary review of the petition in accordance with Rule 4 of the Rules Governing Section 2254 Cases, the undersigned entered an order setting a deadline for Baker “to file with the Court any briefing, evidence, and/or other materials he deems necessary to show why his petition should not be dismissed as time-barred.” (Doc. 4). Baker timely filed a response to that order (Doc. 5). After reviewing the response, the undersigned ordered that the petition be served on the Respondent for an answer under Rule 5 of the Rules Governing Section 2254 Cases.

         The Respondent, through the Office of the Attorney General of the State of Alabama, timely filed an Answer (Doc. 10) to the operative petition and, in response to the Court's order to supplement (Doc. 11), a Supplemental Answer (Doc. 12) addressing the arguments made in Baker's response to the previous show-cause order on timeliness. Baker has not submitted a reply to the Respondent's answers, the deadline to do so has expired, and the petition is now under submission for determination of whether expansion of the record and/or an evidentiary hearing is warranted. See (Doc. 11); Rules 7 and 8(a) of the Rules Governing Section 2254 Cases. Having reviewed the petition, Baker's show-cause response, the Respondent's answers, and the records from the state court proceedings in accordance with Rule 8(a) of the Rules Governing Section 2254 Cases, the undersigned finds that neither expansion of the record nor an evidentiary hearing is needed, and that Baker's habeas petition is due to be DISMISSED with prejudice as both time-barred and without merit

         I. Analysis

         A. Statute of Limitations

         As was previously explained in the undersigned's order for Baker to show cause why his petition should not be dismissed as untimely (see Doc. 4), because Baker's habeas petition was filed after April 24, 1996, it is subject to application of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S.Ct. 1625 (2013). Among other things, AEDPA imposes the following time limit for bringing habeas petitions:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). Nothing in Baker's present petition or his show-cause response supports running his one-year limitations period from any of the dates in § 2244(d)(1)(B) - (D). Thus, Baker had “one year from the date his judgment of conviction and sentence bec[a]me[] final to file a petition for a writ of habeas corpus in federal court.” Walton v. Sec'y, Florida Dep't of Corr., 661 F.3d 1308, 1310 (11th Cir. 2011) (citing 28 U.S.C. § 2244(d)(1)(A)).

         Baker challenges a criminal judgment handed down by the Circuit Court of Conecuh County, Alabama (No. CC-2013-62).[2] The state court records produced by the Respondent show that on April 22, 2014, Baker pleaded guilty to one count of murder in violation of Ala. Code § 13A-6-2 and was sentenced to life imprisonment under Alabama's Habitual Offender Act. (See Doc. 10-1 [Respondent's Ex. A, 4/22/2014 Guilty Plea & Sentencing Hearing Transcript]). Baker took no direct appeal of that judgment. Thus, Baker's AEDPA clock began running on June 4, 2014, the date following the last day for Baker to file a notice of appeal. See Ala. R. App. P. 4(b)(1) (“In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence…”); Fed.R.Civ.P. 6(a)(1)(A)-(B) (“[I]n computing any time period specified in ... any statute that does not specify a method of computing time ... [we must] exclude the day of the event that triggers the period [and] count every day, including intermediate Saturdays, Sundays, and legal holidays…”); San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir. 2011) (“Consonant with Fed.R.Civ.P. 6(a)(1), AEDPA's one-year limitation period begins to run from the day after the Supreme Court enters an order denying the petition for writ of certiorari.”).

         “The limitation period is tolled for ‘[t]he time during which a properly filed application for State post-conviction or other collateral review' is pending.” Walton, 661 F.3d at 1310 (quoting 28 U.S.C. § 2244(d)(2)). The record indicates that Baker filed a petition for post-conviction relief under Alabama Rule of Criminal Procedure 32 with the Conecuh County Circuit Court on March 16, 2015 (see Doc. 10-2 at 9 - 26 [Respondent's Ex. B, pp. 8 - 25]), the date he certified under penalty of perjury that it was being mailed, [3] thus tolling Baker's AEDPA clock with 285 days elapsed and 80 days left. See McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir. 2009) (“a [Alabama] Rule 32 petition is a tolling motion under § 2244(d)(2)”). Baker filed an amended Alabama Rule 32 petition on July 30, 2015, the date he certified it was mailed. (See Doc. 10-2 at 97 - 109 [Respondent's ...


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