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Mosley v. Stewart

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

October 10, 2018

DONALD RICHARD MOSLEY, Petitioner,
v.
CYNTHIA STEWART, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Donald Richard Mosley, a state inmate in the custody of Respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). In his petition, Mosley appears to challenge both his September 2012 conviction for attempted theft of property first degree, and the revocation of his probation in September 2012. (Doc. 16-1 at 11, Doc. 16-4 at 2). Mosley's petition has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Ala. GenLR 72(a)(2)(R), and Rule 8 of the Rules Governing Section 2254 Cases. The undersigned has conducted a careful review of the record and finds that no evidentiary hearing is required to resolve this case. Kelley v. Secretary for the Dep't of Corrs., 377 F.3d 1317 (11th Cir. 2004). Following a complete review of this action, the undersigned recommends that the petition be dismissed as untimely.

         I. FINDINGS OF FACT

         On September 22, 2009, Mosley was placed on probation after being convicted of second-degree theft of property. (Doc. 16-4 at 1). In September 2012, Mosley was convicted of attempted theft of property, first degree, and was sentenced to 76 months imprisonment. (Doc. 16-19 at 1). Subsequent to his conviction, Mosley's probation (in his 2009 theft case) was revoked on September 26, 2012. (Doc. 16-4). Mosley appealed the revocation of his probation, but did not appeal his 2012 theft of property, first degree conviction and sentence. (Doc. 16-4 at 1; Doc. 16-19 at 1). On February 8, 2013, the Alabama Court of Criminal Appeals affirmed the trial court's revocation of Mosley's probation. (Doc. 16-4 at 2.). Mosley filed a writ of certiorari, which was denied by the Alabama Supreme Court on April 12, 2013. (Doc. 16-7). A certificate of judgment was issued on the same date. (Id.).[1]

         On January 5, 2015, Mosley filed a Rule 32 petition wherein he attacked his September 2012 conviction for attempted theft of property, first degree. (Doc. 16-13 at 8-23). The trial court conducted an evidentiary hearing and denied the petition on July 24, 2015. (Id. at 2). Mosley appealed this denial and on February 5, 2016, the Alabama Court of Criminal Appeals affirmed the trial court's judgment. (Doc. 16-19). Mosley filed a petition for writ of certiorari to the Alabama Supreme Court, but it was stricken as non-compliant. Judgment was issued on March 24, 2016. (Docs. 16-20, 16-21).

         Mosley filed the instant § 2254 petition on July 5, 2016.[2](Doc. 1). He attacks his September 2012 conviction and the September 2012 revocation of his probation based upon the following grounds: (1) there is newly discovered evidence that the officer that testified at his revocation hearing has since been arrested; (2) counsel was ineffective for allowing the use of a witness statement without an objection; (3) illegal sentence; (4) actual innocence; and (5) conflict of interest. (Id. at 7-9). In Respondent's brief in opposition to Mosley's petition, Respondent asserts that Mosley's conviction became final forty-two days after his September 2012 conviction; thus, his § 2254 petition, filed on July 5, 2016, is beyond the one-year period of limitation in 28 U.S.C. 6 2244(d) and should therefore be dismissed as untimely. (Doc. 16 at 8-9). Further, the Respondent argues that Mosley's Rule 32 petition, filed on January 5, 2015, did not toll the limitation period because it was filed outside the limitations period. Respondent further asserts that Mosley's assertion of newly discovered evidence is meritless and, thus, does not entitle him to equitable tolling. (Id.).

         For the reasons set forth herein, the undersigned recommends that Mosley's petition be dismissed because it is barred by the one-year statute of limitations.

         II. ANALYSIS

         Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April 24, 1996 enactment of The Anti-Terrorism and Effective Death Penalty Act of 1996, § 101(Supp. II 1997) (“AEDPA”), a state prisoner seeking a federal habeas corpus remedy must file his federal petition within one year of the “conclusion of direct review or the expiration of the time for seeking such review.”

         The Act provides that:

(d)(1) 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 ...

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