United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
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. Kelley v. Secretary for the Dep't
of Corrs., 377 F.3d 1317 (11th Cir. 2004).
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.
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
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
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
(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).
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).
filed the instant federal habeas petition on October 19,
2015. (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).
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).
reasons set forth herein, the undersigned
RECOMMENDS that Killingsworth's ...