United States District Court, S.D. Alabama, Southern Division
JUSTIN J. DEES, Petitioner,
CHRISTOPHER GORDY Respondent.
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
matter is before the Court on the report and recommendation
(“R&R”) of the Magistrate Judge, filed
October 26, 2018, that the subject Petition for Writ of
Habeas Corpus be dismissed as time barred. (Doc. 26).
Petitioner has not filed objections to the R&R. Upon
review, this Court finds that the R&R is correct in all
respects, including its analysis and conclusion. The R&R
is adopted as the opinion of the Court, with limited
revisions thereto to address matters solely as to form, as
Justin Dees, an Alabama prisoner proceeding pro se,
has filed a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. (Docs. 2, 5, 8). 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.
20, 2015, Dees was convicted in Mobile County Circuit Court.
(Doc. 8 at 2). Dees' petition does not state the nature
of his crime, but documents submitted with the petition
indicate that following a jury trial, he was convicted of
murder and is currently serving a life sentence. (See
e.g. Doc. 5 at 17).
January 4, 2018, the Court of Appeals for the Eleventh
Circuit received Dees' original § 2254 petition.
(Doc. 1-2). On January 5, 2018, the Court of Appeals
transmitted the filing to this Court, noting that it appeared
Dees mistakenly filed his petition in the incorrect court.
petition was docketed in this Court on January 9, 2018.
(Docs. 1-3). Under the “prison mailbox rule, ”
the motion is deemed filed on the day it was signed and
delivered to prison authorities for mailing. Houston v.
Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245
(1988). Dees did not date his original petition and the post
mark is unclear. (Doc. 2). However, based on the date of
receipt, it appears the petition was initially filed in late
December 2017 or early January 2018.
original petition was submitted using an incorrect form and
this Court ordered Petitioner to re-file his petition on the
correct form. (Doc. 4). Dees filed an amended petition but
did not sign or date the petition. (Doc. 5). Pursuant to the
Court's order, Dees signed, dated, and re-filed the
petition. (Docs. 7-8). Doc. 8 is the operative petition in
petition identifies the following grounds for relief: (1) the
state trial court refused to have a hearing on his speedy
trial motions, (2) he was denied his right to a speedy trial
and the state trial court refused to hold an evidentiary
hearing on his motions, and (3) there was a 22-month delay
between Dees' indictment and trial. (Doc. 8 at 5-8). In
response to Paragraph 19, entitled Timeliness of Petition,
Dees states “N/A.” (Doc. 8 at 10-11, ¶ 19).
to Dees, on May 27, 2016, the Alabama Court of Criminal
Appeals denied his direct appeal. (Id. at 3,
¶10). Dees states that he did not file a petition for
rehearing, and has filed no other petitions or applications
with respect to the judgment. (Id. at 3, ¶ 11).
March 20, 2018, the undersigned ordered Dees to respond in
order to show cause as to why his petition should not be
dismissed as time barred. (Doc. 9). Dees has filed a timely
response, arguing that he is entitled to the application of
equitable tolling. (Doc. 10).
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 ...