United States District Court, S.D. Alabama, Southern Division
HAROLD L. DORTCH, Petitioner,
v.
WALTER MYERS Respondent.
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
Petitioner,
Harold L. Dortch, an Alabama prisoner proceeding pro se, has
filed a Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254. (Docs. 1, 4). Under S.D. Ala. GenLR 72.2(b), the
petition has been referred to the undersigned Magistrate
Judge for entry of a recommendation as to the appropriate
disposition, in accordance with 28 U.S.C. §
636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing §
2254 Cases in the United States District Courts, and S.D.
Ala. GenLR 72(a)(2)(R). Upon consideration, the Court
RECOMMENDS that the petition be
DISMISSED as time barred.
I.
Background
On
February 10, 2015, Dortch pleaded guilty to two counts of
first degree robbery in the Mobile County Circuit Court.
(Doc. 14-3). He was sentenced to two concurrent ten-year
prison terms pursuant to these convictions. (CC-14-3964;
CC-14-3965). (Doc. 14 at 2). Dortch is currently serving the
sentence.
Dortch
filed a Motion for New Sentencing Order on July 24, 2015 with
the trial court. He requested that the trial court amend the
sentencing order to include placement within the Alabama
Department of Corrections substance abuse program. (Doc.
14-5). His motion was denied. The trial court held that
because it was a “straight sentence”,
“[t]he court no longer had the jurisdiction to modify
the term of the sentence as it would with a split
sentence.” (Doc. 14-6). In addition, Dortch also filed
motions for resentencing in July 2016, April 2017 and April
2018, which were all denied.
On
October 7, 2015, Dortch filed a Rule 32 petition,
postconviction. In his petition, Dortch asserted, in sum,
that there was ineffective assistance of counsel, an
involuntary guilty plea and that the trial court breached the
plea agreement. “Dortch subsequently moved to dismiss
his Rule 32 petition…On May 4, 2016, the trial court
granted Dortch's motion and dismissed the Rule 32
petition.” (Doc. 14 at 3).
Dortch's
original petition for writ of habeas corpus was submitted
using an incorrect form and the Court ordered Petitioner to
re-file his petition on the correct form. (Doc. 3). On May
31, 2018 Dortch's amended petition for writ of habeas
corpus was docketed. The Petitioner alleges, in sum, that the
State failed to disclose “evidence favorable to the
defendant”, his “conviction was obtained by use
of coerced confession”, and that he was provided
ineffective assistance of counsel. (Doc. 4 at 6-8). The
Respondent maintains that the claims are unexhausted,
procedurally defaulted and time barred. (Doc. 14). On August
24, 2018, the undersigned ordered that Dortch “is
hereby permitted to submit a reply showing cause why his
habeas petition should not be dismissed for the reasons
stated in the answer.” (Doc. 15 at 2). On September 14,
2018, Dortch filed a reply (Doc. 17) arguing in sum that he
had insufficient legal representation.
II.
Analysis
The
Anti-Terrorism and Effective Death Penalty Act of 1996,
§ 101 (Supp. II 1997) (“AEDPA”), which
became effective on April 24, 1996, provides that a
petitioner has one year from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review” to
file a federal habeas corpus petition. 28 U.S.C. §
2244(d)(1)(A). The statute specifically provides as follows:
(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
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
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