United States District Court, N.D. Alabama, Southern Division
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE
magistrate judge filed a report and recommendation on January
31, 2019, recommending that the court dismiss
Petitioner's 28 U.S.C. § 2254 petition for habeas
corpus relief. (Doc. 14). On February 11, 2019, Petitioner
filed objections to the report and recommendation. (Doc. 15).
On February 25, 2019, Petitioner supplemented his objections.
argues that the court should not dismiss his claims as
untimely because he is entitled to equitable tolling and
because he is actually innocent of the offenses. (Doc. 15 at
2). However, Petitioner did not raise these arguments in his
petition or his response. (Doc. 1; Doc. 9). Moreover,
Petitioner only makes conclusory allegations in his
objections that he is entitled to equitable tolling and
actually innocent of the offenses without offering any
factual support of the same. Accordingly, Petitioner is not
entitled to equitable tolling and his claims are barred by
the statute of limitations.
reasserts his claims that the trial court erred when it
denied his motions and petitions for a reduced sentence under
Ala. Code § 13A-5-9.1 and Kirby v. State, 899
So.2d 968 (Ala. 2004). (Doc. 15 at 1-3). However, Petitioner
does not address the magistrate judge's conclusion that
any claim that Alabama courts failed to follow their own laws
regarding petitioner's eligibility for a reduced sentence
under § 13A-5-9.1 is not cognizable in a federal habeas
action. Carrizales v. Wainwright, 699 F.2d 1053,
1055 (11th Cir. 1983); Curry v. Culliver, 141 Fed.
App'x 832, 834 (11th Cir. 2005).
Petitioner has not shown how the trial court's failure to
reduce his sentence under Ala. Code § 13A-5-9.1 violates
his constitutional rights to due process or equal protection.
Petitioner merely states that he should have been afforded
“the exact same relief” as defendants in other
criminal cases who had counsel and received a sentence
reduction. (Doc. 15 at 3). Petitioner reasons he was denied a
sentence reduction because he did not have money to hire
counsel. (Id.). However, Petitioner fails to show
that other defendants were granted a sentence reduction
because of their race, religion, or some other
constitutionally protected basis in order to state an equal
protection claim. See Sweet v. Sec'y, Dept. of
Corrs., 467 F.3d 1311, 1318-19 (11th Cir. 2006).
Evidence which merely indicates disparity of treatment of
even arbitrary administration of state powers, rather than
instances of purposeful or invidious discrimination, is
insufficient to show discriminatory intent. See McCleskey
v. Kemp, 481 U.S. 279, 292-94 (1987). Accordingly,
Petitioner's due process and equal protection claims are
due to be dismissed.
carefully considered de novo all of the materials in
the court file, including the report and recommendation and
the objections thereto, the court ADOPTS the
report and ACCEPTS the recommendation. The
court ORDERS that the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in the
above-styled cause is due to be denied and dismissed with
prejudice. A separate order will be entered.
court may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
To make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). This court finds petitioner's claims do not
satisfy either standard.
 Petitioner also argues that the
magistrate judge failed to follow Ninth Circuit Court of
Appeals' case law when analyzing his due process and
equal protection claims. (Doc. 16 at 1). However, this court
is bound by case law from the Eleventh Circuit Court of
Appeals, not the Ninth Circuit. See Fox v. Acadia State
Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (“[A]
district court in this circuit is bound by this court's
decisions.”); Springer v. Wal-Mart Assocs.'
Group Health Plan, 908 F.2d 897, 900 n.1 (11th ...