Mills v. Myers

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Stephen M. Doyle United States Magistrate Judge

         I. INTRODUCTION

         This case is before the Court on a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by Alabama inmate Antavis Davon Mills on April 20, 2017. (Doc. 1).^[1]Mills challenges his 2012 Dale County convictions for attempted murder and felony murder, for which he was sentenced to concurrent terms of 33 years in prison. In his petition, Mills claims his trial counsel was ineffective for failing to subpoena a witness who he says would have provided favorable testimony for him at trial. (Doc. 1) at 5. Respondents argue that Mills' petition is time-barred under the federal limitation period. (Doc. 9) at 4-5, 12. The Court agrees and finds that Mills' petition should be denied without an evidentiary hearing and this case should be dismissed with prejudice.

         II. DISCUSSION

         A. AEDPA's One-Year Limitation Period

         Title 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides the statute of limitations for federal habeas petitions and states:

(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 exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

         B. State ...