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Dees v. Gordy

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

January 17, 2019

JUSTIN J. DEES, Petitioner,
v.
CHRISTOPHER GORDY[1] Respondent.

          ORDER

          JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE

         This 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 follows:

         REPORT AND RECOMMENDATION

         Petitioner, 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.

         I. Background

         On July 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).

         On 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. (Doc. 1).

         Dees' 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.[2]

         Dees' 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 this action.

         Dees' 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).

         According 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).

         On 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).

         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 ...

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