United States District Court, N.D. Alabama, Northeastern Division
MAGISTRATE JUDGE'S REPORT AND
G. CORNELIUS U.S. MAGISTRATE JUDGE
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).
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).
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. 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).
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. 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))).
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.).
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.
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