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Pugh v. Jones

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

October 25, 2018

PETRO DERAN PUGH, Petitioner,
v.
KARLA WALKER JONES, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Petro Deran Pugh, 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. 7). The petition has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 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.[1] Kelley v. Secretary for the Dep't of Corrs., 377 F.3d 1317 (11th Cir. 2004).

         Having carefully considered Pugh's petition and Respondent's answer (Doc. 13), the undersigned finds that Pugh's petition contains claims that are procedurally defaulted or meritless. Accordingly, it is RECOMMENDED that Pugh's habeas petition be DISMISSED; that judgment be entered in favor of Respondent and against Petitioner, Petro Deran Pugh, pursuant to 28 U.S.C. § 2244(d); and that any motion for a Certificate of Appealability or for permission to appeal in forma pauperis be denied as Pugh is not entitled to the issuance of a certificate of appealability, nor is he entitled to appeal in forma pauperis.

         I. BACKGROUND FACTS

         On October 7, 2013, Pugh pled guilty, pursuant to a plea agreement, to enticement of a child for immoral purposes, in violation of Ala. Code § 13A-6-69, in the Circuit Court of Clarke County, Alabama. (Docs. 7 at 2; 13 at 2; 13-1 at 46-55). Based on his plea, the court sentenced Pugh to twelve (12) years imprisonment, with 265 days credit for the time he had already served. (Docs. 7 at 12; 13-1 at 53).

         Pugh did not directly appeal his conviction and sentence. (Doc. 7 at 3). Instead, on August 14, 2014, he filed a Rule 32 petition for post-conviction relief and a motion to proceed in forma pauperis.[2] (Docs. 7 at 4; 13-1 at 6-38). In his petition, Pugh advanced various arguments, described in the State's response as follows:

In the instant petition, the Petitioner raises the following allegations: (1) conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea; (2) conviction obtained by use of a coerced confession; (3) denial of effective assistance of counsel; and (4) newly discovered material facts exist which requires that the conviction or sentence be vacated, because the facts were not known by the Petitioner or his counsel at the time of sentencing.

(Doc. 13-1 at 39). The State argued that each of Pugh's claims was due to be dismissed because he failed to state claims upon which relief could be granted. (Id. at 40-43).

         On September 11, 2014, without ruling on Pugh's motion to proceed in forma pauperis, the Circuit Court of Clarke County denied Pugh's petition. (Doc. 13-1 at 56). On September 20, 2014, Pugh appealed the dismissal of his Rule 32 petition to the Alabama Court of Criminal Appeals. (Id. at 62). On March 19, 2015, the Alabama Court of Criminal Appeals remanded the case to the circuit court “to make specific findings of fact as to whether a motion for in forma pauperis was filed and granted or whether Pugh paid K the filing fee.” (Id. at 70). The appeals court observed that because the circuit court failed to receive a filing fee from Pugh or grant his motion to proceed in forma pauperis, prior to issuing its judgment, the court's order dated September 11, 2014, was void. (Id.).

         On June 8, 2015, the Circuit Court of Clarke County determined that Pugh had in fact filed a motion to proceed in forma pauperis, and granted his motion. (Id.). On April 14, 2016, the Court issued an order again denying Pugh's Rule 32 petition. (Doc. 13-1 at 73). Pugh appealed the dismissal of his petition. (Id. at 74-75). The Alabama Court of Criminal Appeals described the issues raised on appeal as follows:

On appeal, Pugh argues that (1) his sentence was excessive and illegal because he was convicted of a Class C felony that was enhanced by his 4 prior felonies and the sentence was not mandatory. He further submits that (2) his prior convictions were not properly proven by the State. He also argues that (3) his plea is void because the judge failed to sign the agreement, and (4) it was involuntary because he was not informed by his counsel that he could not get good time credit. He contends that (5) his counsel was ineffective for allowing him to plead to a straight 12-year sentence and failing to inform him that he could not get good-time credit. Finally, he alleges that (6) the court abused its discretion by not reading the statute of conviction or the indictment in open court.

(Doc. 13-4 at 3-4). On December 9, 2016, the Alabama Court of Criminal Appeals held that only Pugh's claim that his plea was involuntary because his counsel did not inform him that he could not receive good time credit, and his claim of ineffective assistance of counsel could be considered because the remainder of his claims were not raised in his Rule 32 petition before the circuit court. (Id. at 4). In affirming the denial of Pugh's Rule 32 petition, the appeals court held that Pugh failed to properly plead his ineffective assistance of counsel claim because he did not plead the claim with specificity. (Id. at 4-5). On December 21, 2016, Pugh filed an application for rehearing, which was overruled by the Alabama Court of Criminal Appeals on January 6, 2017. (Docs. 13-5, 13-6). Pugh then filed a petition for writ of certiorari with the Alabama Supreme Court on January 17, 2017, which was denied on March 10, 2017. (Docs. 13-7, 13-8). The Alabama Court of Criminal Appeals then issued a certificate of judgment on March 10, 2017. (Doc. 13-9).

         Pugh initially filed a petition for writ of habeas corpus with the United States District Court for the Middle District of Alabama on May 15, 2017. (Doc. 5 at 16). That court transferred Pugh's petition to this Court on June 20, 2017. (Id. at 47-51). On June 23, 2017, the Court entered an order directing Pugh to re-file his petition and motion to proceed without prepayment of fees on the Court's required forms by July 24, 2017. (Doc. 6). On June 28, 2017, Pugh refiled his petition and motion to proceed without prepayment of fees.[3] (Docs. 7, 8). In his petition, Pugh raises four grounds for relief: (1) his sentence is illegal because he pled guilty to enticing a child for immoral purposes, but his alleged victim was over the age of twelve (12); (2) his trial counsel, Tara Armistead, was ineffective when she advised him that he would receive “good time” credit and could be considered for parole; (3) his plea agreement was void because the trial judge failed to sign the agreement; and (4) the trial court failed to produce any certified evidence of his prior felony convictions. (Doc. 7 at 6-8).

         In Respondent's brief in opposition to Pugh's petition, Respondent asserts that Pugh's petition is untimely. (Doc. 13 at 11). According to Respondent, Pugh's conviction became final on November 18, 2013; the statute of limitations was tolled by Pugh's timely filing of his Rule 32 petition; and the limitations period resumed on March 10, 2017, when the Alabama Court of Criminal Appeals issued its certificate of judgment, and expired on June 14, 2017. Respondent argues that because Pugh's amended habeas petition was not filed until June 28, 2017, it is untimely, and Pugh is not entitled to equitable tolling. (Id. at 11-12). Respondent further argues that, notwithstanding the alleged untimeliness of Pugh's petition, his claims fail as a matter of law. Respondent alleges that Pugh's claims regarding illegal sentence, void plea agreement, and prior felony convictions are due to be dismissed because they are unexhausted state law claims. (Id. at 17-19). Respondent further argues that Pugh's ineffective assistance of counsel claim should fail because he has failed to establish that his counsel rendered service that fell below the constitutional standard established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (Id. at 19-22).

         For the reasons set forth herein, the undersigned RECOMMENDS that Pugh's petition be DISMISSED.

         II. ANALYSIS

         a. Timeliness of Petition

         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 limitations 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 diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244 (d).

         As noted above, the AEDPA imposes a one-year limitations period on § 2254 actions and includes several commencement dates, one of which is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). The conviction at issue in the instant petition occurred on October 7, 2013, when Pugh pled guilty to, and was sentenced for, enticement of a child for immoral purposes. Since Pugh did not file a direct appeal of his conviction, it became final forty-two (42) days after his sentence was pronounced, or on November 18, 2013. See Ala. R. App. P. 4(b)(1). Accordingly, the statute of limitations for Pugh to file a federal habeas petition began running on November 18, 2013 and, in the absence of a tolling event, expired one year later, on November 18, 2014.

         Section 2244(d)(2) of the AEDPA provides for the tolling of the limitations period pending state court review of a properly filed application for post-conviction relief. See In re Hill, 437 F.3d 1080, 1083 (11th Cir. 2006). However, the law is clear that petitions “filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled.” Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); see also Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (“A state court filing after the federal habeas filing deadline does not revive it.”); Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003) (“The statutory tolling provision does not encompass a period of time in which a state prisoner does not have a “properly filed” post-conviction application actually pending in state court.”).

         Here, the statute of limitations was tolled when Pugh filed his Rule 32 petition on August 14, 2014. At the time of he filed his Rule 32 petition, the limitations period, which commenced on November 18, 2013, had run for 269 days, with 96 days remaining. The tolling period lasted for the duration of Pugh's proceedings before the state courts, including his appeals. However, tolling ended, and the limitations period began to run again, on March 10, 2017, the date on which the Alabama Court of Criminal Appeals issued a certificate of judgment regarding Pugh's Rule 32 petition. At that point, Pugh had 96 days from March 10, 2017, or until June 14, 2017, in which to file a federal habeas petition.

         As noted supra, Pugh initially filed his habeas petition in the United States District Court for the Middle District of Alabama on May 15, 2017. This filing was within the limitations period. The Court in the Middle District transferred Pugh's petition to this Court on June 20, 2017, six days after the limitations period expired. On June 23, 2017, this Court ordered Pugh to re-file his petition on the Court's required forms by July 24, 2017. Pugh, in compliance with the Court's order dated June 23, 2017, re-filed his petition on June 28, 2017, fourteen days after the expiration of the AEDPA limitations period. Respondent argues that the filing with this Court was untimely.

         Petitions for habeas corpus relief “may be amended or supplemented as provided in the rules of procedure applicable to civil actions.” 28 U.S.C. §2242. Federal Rule of Civil Procedure 15(c)(1)(B) provides that an “amendment to a pleading relates back to the date of the original pleading when . . . (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading.” The relevant “occurrence” with respect to a habeas petition is the specific claim being asserted. Mayle v. Felix, 545 U.S. 644, 664 (2005).

         In Davenport v. United States, the Eleventh Circuit held that, “for an untimely [habeas petition] to ‘relate back' under Rule 15(c), the untimely claim must have more in common with the timely filed claim than the mere fact that they arose out of the same trial and sentencing proceedings.” Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000) (citations omitted). “Instead, in order to relate back, the untimely claim must have arisen from the ‘same set of facts' as the timely filed claim, not from separate conduct or a separate occurrence in ‘both time and type.'” Id. (Citations omitted).

         Here, Pugh's original petition, filed in the Middle District of Alabama, raised four grounds for relief: (1) “illegal sentence, ” based on his assertion that his victim was over the age of twelve (12); (2) ineffective assistance of counsel, based on his trial counsel's alleged advice that he could receive “good time” credit and parole consideration; (3) “void plea agreement” because the trial judge did not sign the plea agreement; and (4) “prior felony conviction, ” which is his assertion that the trial court never produced evidence of his prior felony convictions. (Doc. 5 at 7-12). Pugh reiterated each of these claims, including his reasoning in his amended petition. (Doc. 7 at 6-8). Thus, Pugh's claims in his amended petition mirror those in his original petition. Each of the claims in his amended petition rely on the same facts and arise from the same occurrence as his initial petition; ...


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