Kennedy v. Dunn

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          STACI G. CORNELIUS U.S. MAGISTRATE JUDGE

         This is an action on a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 by Huey Lovell Kennedy, an Alabama state prisoner proceeding with the assistance of counsel. The petitioner challenges his 2011 conviction for capital murder in the Circuit Court of Madison County, Alabama. In his amended petition, the petitioner claims his conviction violates due process and equal protection and inflicts cruel and unusual punishment. (Doc. 3-1 at 2). He further claims his trial and appellate counsel were ineffective in violation of the Sixth Amendment. (Id. at 6).

         In accordance with the usual practices of this court and 28 U.S.C. § 636(b), the matter was referred to the undersigned magistrate judge for preliminary review and recommendation. On December 30, 2016, the undersigned entered an order requiring the petitioner to show cause why this action should not be dismissed as time-barred. (Doc. 4). On January 30, 2017, the petitioner responded to the show cause order, arguing the statute of limitations should be equitably tolled. (Doc. 7).

         I. Background

         In September 2011, the petitioner was convicted of capital murder in the Madison County Circuit Court and sentenced to a term of life imprisonment without the possibility of parole. (Doc. 3 at 1); see also State v. Kennedy, No. 47-CC-2010-3584.^[1] The Alabama Court of Criminal Appeals affirmed the conviction on direct appeal and overruled the petitioner's application for rehearing. (Doc. 3 at 2; Trial Court Docs. 82, 83). The Alabama Supreme Court denied certiorari review on October 11, 2013, and the Alabama Court of Criminal Appeals issued a certificate of judgment on the same date. (Doc. 3 at 2; Trial Court Doc. 84). The petitioner did not seek certiorari review in the United States Supreme Court. (Doc. 3 at 3).

         On October 9, 2014, the petitioner filed a petition for post-conviction relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in the Madison County Circuit Court. (Id.); see also State v. Kennedy, No. 47-CC-2010-3584.60.^[2] The circuit court dismissed the petition because it failed to include “ ‘a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of these grounds.'” (Post-Conviction Doc. 2 (quoting ALA. R. CRIM. P. 32.6(b))).

         The petitioner filed a motion to reconsider, stating counsel had inadvertently failed to include in the Rule 32 petition a statement of the grounds upon which relief was sought. (Trial Court Doc. 86). The motion was filed in the trial proceedings, rather than in the post-conviction proceedings. (See id.). By an order entered in the trial proceedings, the circuit court granted the petitioner leave to file an amended Rule 32 petition and reserved ruling on the motion to reconsider. (Trial Court Doc. 88). While the petitioner filed an amended Rule 32 petition in the post-conviction proceedings (Post-Conviction Doc. 4), the circuit court at that time concluded it had lost jurisdiction to entertain the petition. (Post-Conviction Doc. 6). The circuit court reasoned it retained jurisdiction to modify the order of dismissal for only thirty days after its entry, which period had expired. (Id.).

         On appeal, the petitioner did not contest the dismissal of his original Rule 32 petition, conceding it did not comply with Rule 32.6(b). (Post-Conviction Doc. 16). Rather, he contested the circuit court's refusal to entertain his amended petition. (Id.). The Alabama Court of Criminal Appeals affirmed the circuit court's judgment. (Id.). The appellate court overruled the petitioner's application for rehearing on April 24, 2015, and issued a certificate of judgment on July 10, 2015. (Post-Conviction Doc. 18). The petitioner did not seek certiorari review in the Alabama Supreme Court.

         II. Discussion

         A federal district court is authorized to entertain an application for a writ of habeas corpus filed by a person in custody pursuant to the judgment of a state court where the petitioner alleges he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). However, federal habeas petitioners must satisfy various procedural requirements to obtain relief, including compliance with the one-year statute of limitations provided by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d)(1). The limitations period runs from the later of four possible dates:

(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 ...