Dortch v. Myers

          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 ...