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Killingsworth v. Daniels

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

January 9, 2019

DAVID MICHAEL KILLINGSWORTH, Petitioner,
v.
LEE POSEY DANIELS, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         David Michael Killingsworth, 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). 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), 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.[1] Kelley v. Secretary for the Dep't of Corrs., 377 F.3d 1317 (11th Cir. 2004).

         Having carefully considered Killingsworth's petition, Respondent's answer (Doc. 10), and Killingsworth's reply (Doc. 11), the undersigned finds that Killingsworth's petition is untimely and that equitable tolling is not appropriate. Accordingly, it is RECOMMENDED that Killingsworth's habeas petition be DISMISSED as time-barred; that judgment be entered in favor of Respondent and against Petitioner, David Michael Killingsworth, pursuant to 28 U.S.C. § 2244(d); and that Killingsworth is not entitled to the issuance of a certificate of appealability, nor is he entitled to appeal in forma pauperis.

         I. BACKGROUND FACTS

         On September 27, 2010, Killingsworth pled guilty to murder in the Circuit Court of Mobile County, Alabama, and was sentenced to life imprisonment. (Doc. 1 at 22; Doc. 10-1 at 5, 28-29, 71). On January 12, 2011, Killingsworth filed a motion to withdraw his guilty plea (Doc. 1 at 22; Doc. 10-1 at 71). It was denied as untimely on January 19, 2011. (Doc. 1 at 22; Doc. 10-1 at 6, 71). In the order denying Killingsworth's motion, the Circuit Court advised him that he could present his arguments “in a timely Rule 32 petition.” (Doc. 1 at 22-23; Doc. 10-1 at 71-72). On April 27, 2011, Killingsworth filed a motion for discovery, which was granted. (Doc. 1 at 23; Doc. 10-1 at 6, 72). He filed two other motions for discovery, both of which were denied. (Id.).

         Proceeding pro se, Killingsworth filed a Rule 32 petition on September 4, 2013. (Doc. 1 at 23, 30; Doc. 10-1 at 53, 72). The Circuit Court summarized Killingsworth's arguments as follows:

In addition to his petition (and attachments thereto), Killingsworth filed a “Response to the State's Brief” on November 19, 2013, and a “Supplement Amendment” in April 2014. As best this Court can discern from those filings, Killingsworth states four grounds for Rule 32 relief. First, he challenges the sufficiency of the evidence. Next, Killingsworth asserts that the indictment was defective. Also, Killingsworth contends that his plea was involuntary. Finally, Killingsworth asserts that he was denied effective assistance of trial counsel for various reasons.

(Doc. 1 at 23-24; Doc. 10-1 at 72-73). On April 16, 2014, the court dismissed Killingsworth's Rule 32 petition as untimely. (Doc. 1 at 27; Doc. 10-1 at 76). The Court also found that his claims were precluded from review because they could have been raised at trial or on appeal. (Id.). In discussing of untimeliness of Killingsworth's Rule 32 petition, the Circuit Court stated:

The limitations period for filing a Rule 32 petition is within one year after the issuance of a certificate of judgment by the Court of Criminal Appeals (or within one year after the time for appealing lapses). Ala. R. Crim. P. Rule 32.2(c). This Rule 32 petition was filed almost two years after the lapse of Killingsworth's time for appeal. See Ala. R. App. P. Rule 4(b)(1). Killingsworth has failed to assert any basis for equitable tolling, and the grounds raised by Killingsworth are nonjurisdictional. Thus, the petition is time-barred and due to be summarily dismissed on that basis. See Ala. R. Crim. P. Rule 32.2(c); see also Davenport v. State, 987 So.2d 652, 655 (Ala. 2007).

(Doc. 1 at 23; Doc. 10-1 at 72).

         On May 13, 2014, Killingsworth filed a notice of appeal, and the Alabama Court of Appeals affirmed the Circuit Court's decision denying his Rule 32 petition on September 26, 2014. (Doc. 1 at 31; Doc. 10-1 at 108-09; Doc. 10-4 at 5). Killingsworth filed an application for rehearing (Doc. 10-5) on or around October 9, 2014, which was overruled on October 17, 2014. (Doc. 10-6 at 2). On October 29, 2014, Killingsworth filed a petition for writ of certiorari with the Alabama Supreme Court (Doc. 10-7), which was denied on January 16, 2015. (Doc. 10-8 at 2).

         Killingsworth filed the instant federal habeas petition on October 19, 2015.[2] (Doc. 1 at 21). In his federal petition, Killingsworth attacks his conviction on the following grounds: (1) the evidence, including inconsistent testimony by the state's witnesses, was insufficient (id. at 5-12); (2) the indictment was defective because it failed to “sufficiently apprise him of the charge he was called to defend against” (id. at 12); (3) his guilty plea was not voluntary guilty because he was “coerced by his attorneys” (id. at 14); and (4) his attorney provided ineffective assistance. (Id. at 15).

         In Respondent's brief in opposition to Killingsworth's petition, Respondent asserts that Killingsworth's conviction became final on November 9, 2010, that his Rule 32 petition, filed in 2013, was untimely filed; thus, it had no tolling effect, and that Killingsworth's federal habeas petition was filed beyond the one-year period of limitations contained in 28 U.S.C. § 2244(d); thus, it is untimely. (Id. at 11).

         For the reasons set forth herein, the undersigned RECOMMENDS that Killingsworth's ...


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