Opinion
CA 00-0074-CB-C.
August 3, 2000.
REPORT AND RECOMMENDATION
Carl Arthur Perry, a state prisoner presently in the custody of Warden Steve Dees, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This matter has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that the instant petition be dismissed as time-barred under the Anti-Terrorism and Effective Death Penalty Act's one-year limitation provision contained in 28 U.S.C. § 2244(d).
In light of this decision, the Magistrate Judge DENIES the following motions filed by the petitioner: (1) "ORDOR (sic) FOR SUBPOENA DUCES TECUM" (Doc. 7); (2) "MOTION TO COURT FOR ORDER TO SHOW CAUSE" (Doc. 8); and (3) "MOTION FOR RESPONSE" (Doc. 9).
FINDINGS OF FACT
1. Perry was convicted in the Circuit Court of Mobile County, Alabama on May 18, 1983, of murder and sentenced to life imprisonment without the possibility of parole pursuant to Alabama's Habitual Felony Offender Statute on May 24, 1983. (Doc. 1, Exhibit A, Case Action Summary Sheet) Petitioner's conviction and sentence were affirmed on appeal on May 22, 1984. Perry v. State, 453 So.2d 762 (Ala.Crim.App. 1984) (written opinion addressed Perry's contentions that the trial court erred in allowing the state to use leading questions and questions calling for speculation on the part of witnesses, that the evidence was not sufficient to support a finding of murder, and that the trial court erred in failing to charge the jury on killing in the sudden heat of passion caused by provocation). The Alabama Court of Criminal Appeals denied Perry's motion for rehearing on June 26, 1984, id., and the trial court received the appellate court's certificate of judgment of affirmance on July 18, 1984 (Doc. 1, Exhibit A, Case Action Summary Sheet).2. Both prior to the completion of his direct appeal and thereafter, Perry filed several writs of habeas corpus in the Circuit Court of Mobile County, Alabama collaterally attacking his conviction and sentence. ( See id.) The two writs of habeas corpus filed by petitioner prior to the May 22, 1984 decision of the Alabama Court of Criminal Appeals were simply denied by the trial court. ( Id.) Perry's third writ of habeas corpus, filed June 13, 1984, was set down for an evidentiary hearing and counsel was appointed to represent the petitioner. ( See id.) An evidentiary hearing was conducted on February 8, 1985 and Perry's writ of habeas corpus was denied. ( Id.) Perry entered oral notice of appeal and on October 23, 1985, the Alabama Court of Criminal Appeals affirmed the denial of the writ without written opinion; the appellant's application for rehearing was overruled on November 27, 1985 and the trial court received the appellate court's certificate of final judgment of affirmance on December 17, 1985. ( Id.)
During the pendency of the appeal, Perry filed a fourth petition for writ of habeas corpus on March 8, 1985; this petition was denied by the trial court on March 29, 1985. ( Id.)
3. Perry filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama on October 15, 1996. ( Id.) This state collateral petition was denied as time-barred on October 24, 1996. ( Id.) Petitioner filed notice of appeal on November 1, 1996 ( id.) and on January 17, 1997, the Alabama Court of Criminal Appeals affirmed the denial of the petition, Perry v. State, 706 So.2d 868 (Ala.Crim.App. 1997). Perry's application for rehearing was denied on February 28, 1997, id., and the trial court received the appellate court's certificate of final judgment of affirmance on March 21, 1997 (Doc. 1, Exhibit A, Case Action Summary Sheet).
4. Petitioner filed his final state collateral petition in the Circuit Court of Mobile County, Alabama on May 26, 1999. ( See id.) Perry styled this collateral attack as a "Petition for a Writ of Habeas Corpus Collaterally to Discovery." (Doc. I, Exhibit A, Petition for a Writ of Habeas Corpus Collaterally to Discovery) The state filed a response to the petition on May 28, 1999 (Doc. 1, Exhibit A, Case Action Summary Sheet) and on that same date, the trial court entered an order dismissing the petition (Doc. 1, Exhibit A, ORDER).
On May 18, 1983, a jury found Petitioner guilty of murder. On May 24, 1983 he was adjudged guilty and sentenced to life in prison without parole as a habitual offender. Petitioner filed an appeal and the conviction was affirmed. He filed numerous applications for post conviction relief, the denial from two of which was affirmed on appeal.
The Petitioner claims that the conviction should be set aside because of an illegal sentence, double jeopardy, non-disclosure of exculpatory evidence, perjury, and prosecutorial misconduct. He goes on to explain that his claims are based on the contention that his sentence should not have been enhanced by felonies committed before the effective date of the habitual offender law.
The claim is not jurisdictional, hence it is precluded, successive and barred by the period of limitations. Without waiver of the foregoing, the claim lacks merit. The application of the habitual offender law in the petitioner's circumstance is neither double jeopardy, as he alleges, nor an ex post facto law. Lawrence v. Jones, 837 F.2d 1572 (11th Cir. 1988); Smith v. State, 392 So.2d 1273 (Ala.Crim.App. 1980).
Accordingly, the petition is dismissed under Rule 32.7(d) Ala.R.Crim.P.
( Id.) Notice of appeal was filed by Perry on July 1, 1999 (Doc. 1, Exhibit A, Case Action Summary Sheet) and on September 24, 1999, the Alabama Court of Criminal Appeals affirmed the dismissal of the petition by memorandum opinion (Doc. 1, Exhibit D).
The circuit court treated the petition as a Rule 32 petition and summarily dismissed it pursuant to Rule 32.7(d), Ala.R.Crim.P. This appeal follows.
I.
First, the appellant argues that the trial court improperly sentenced him under the Habitual Felony Offender Act because the prior convictions used to enhance his sentence occurred before that statute was enacted.
However,
"`convictions occurring prior to the effective date of the Habitual Offender Statute may be used for enhanced punishment purposes. Lidge v. State, 419 So.2d 610 (Ala.Cr.App.), cert. denied, 419 so.2d 616 (Ala. 1982).' Gratton v. State, 455 So.2d 189, 191 (Ala.Cr.App. 1984)."
Gwynne v. State, 499 So.2d 802, 810 (Ala.Cr.App. 1986). Furthermore, the use of such convictions does not result in an ex post facto application of the statute. See Chambers v. State, 418 So.2d 948, 950 (Ala.Cr.App. 1982) (citations omitted). Therefore, the trial court properly sentenced the appellant under the Habitual Felony Offender Act.
II.
Next, the appellant argues that the Habitual Felony Offender Act violates double jeopardy principles. However, we have held that the application of the Habitual Felony Offender Act does not constitute double jeopardy. See Dutton v. State, 434 So.2d 853 (Ala.Cr.App. 1983). Therefore, this argument is also without merit.
III.
Finally, the appellant argues that he is entitled to relief because:
1. the prosecutor allegedly withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);
2. the trial court erroneously denied his discovery requests;
3. the prosecutor allegedly engaged in misconduct when he displayed cue cards and notes to the jury;
4. there was insufficient evidence to support his conviction; and
5. the trial court improperly instructed the jury on the burden of proof.
Because the appellant did not raise these specific claims in the petition itself, they are not properly before this court. See Morrison v. State, 551 So.2d 435 (Ala.Cr.App. 1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990). Furthermore, these are nonjurisdictional claims that the appellant could have raised at trial or on appeal. Consequently, they are precluded pursuant to Rule 32.2(a)(3) and (5), Ala.R.Crim.P. Additionally, they are time-barred. See Rule 32.2(c), Ala.R.Crim.P.
For the above-stated reasons, the circuit court properly treated the appellant's petition as a Rule 32 petition and properly summarily dismissed it. See Rule 32.7(d), Ala.R.Crim.P.; Lockett v. State, 644 So.2d 34 (Ala. 1994). If a circuit court's ruling on a post-conviction petition is correct for any reason, we will affirm it. See Long v. State, 675 So.2d 532 (Ala.Cr.App. 1996); Swicegood v. State, 646 So.2d 159 (Ala.Cr.App. 1994). Therefore, we need not address the propriety of the circuit court's finding that the petition was successive. Accordingly, we affirm the circuit court's judgment.
( Id. (footnote omitted)) Perry's application for rehearing was overruled on October 15, 1999 ( see Attachment to Doc. 7) and, on November 15, 1999, his petition for writ of certiorari to the Alabama Supreme Court was stricken for non-compliance with Ala.R.App.P. 39 ( see id.).
5. Petitioner filed the instant habeas corpus petition on December 21, 1999. ( See Doc. 1) The respondent has not been required to answer the petition. (See Docs. 1-9)
CONCLUSIONS OF LAW
1. It is all too clear that a district court has the power under Rule 4 of the Rules Governing Section 2254 Cases "to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state." Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Rule 4 provides, in pertinent part, that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." 28 U.S.C. foll. § 2254, Rule 4. Therefore, the Fifth Circuit in Kiser held that "the district court was within its authority under Rule 4 and Rule 11 of the Rules Governing Section 2254 Cases when it raised the AEDPA's statute of limitations defense sua sponte." 163 F.3d at 329 (footnote added).
Rule 11 states: "The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." 28 U.S.C. foll. § 2254, Rule 11.
In sum, even though the statute of limitations provision of the AEDPA is an affirmative defense rather than jurisdictional, the magistrate judge and district court did not err by raising the defense sua sponte. Their decision to do so was consistent with Rule 4 and Rule 11 of the Rules Governing Section 2254 cases, as well as the precedent of this Court.Id.
2. It plainly appearing from the face of the petition that same is barred by AEDPA's one-year limitations period, the undersigned does not hesitate in following the Kiser court's lead and raises the statute of limitations affirmative defense sua sponte.
3. The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. § 2244 providing for a one-year period of limitations within which state prisoners must file their habeas corpus petitions pursuant to 28 U.S.C. § 2254. Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 1210 (11th Cir. 1998).
(d)(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).
4. "For prisoners whose convictions became final prior to the effective date of the AEDPA, the one-year statute of limitations instituted by the AEDPA began to run on its effective date, i.e., April 24, 1996." Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999) (citations omitted), cert. denied, ___ U.S. ___, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000).
5. It is clear in this case that petitioner's conviction became final in 1984 prior to the effective date of AEDPA. Perry's direct appeal from his conviction and sentence was affirmed by the Alabama Court of Criminal Appeals on May 22, 1984 and the appellate court denied the petition for rehearing on June 26, 1984. Perry, supra, 453 So.2d at 762. The trial court received the appellate court's certificate of final judgment of affirmance on July 18, 1984 (Doc. 1, Exhibit A, Case Action Summary Sheet). Therefore, petitioner's conviction became final on, or before, July 18, 1984. See Ala.R.App.P. 41(a) ("The certificate of judgment of the court shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order. The timely filing of an application for rehearing will stay the certificate of judgment until disposition of the application unless otherwise ordered by the court. If the application is denied, the certificate of judgment shall issue 18 days after entry of the order denying the application unless the time is shortened or enlarged by order."). Accordingly, Perry's limitations period commenced on April 24, 1996 and expired on April 23, 1997, see Guenther, supra, 173 F.3d at 1331, some thirty-two months before he filed his § 2254 application.
6. Perry is unable to take advantage of the tolling provision built into § 2244(d), see Guenther, supra, 173 F.3d at 1331 ("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 . . ., subsection [(d)]."), because the collateral attack on his conviction and sentence that he relies on was not filed until May 26, 1999, that is, after the one-year statute of limitations ran under 2244(d)(1). Cf. Webster, supra, 199 F.3d at 1259 ("Under § 2244(d)(2), even `properly filed' state-court petitions must be `pending' in order to toll the limitations period."). In addition, the one-year limitations provision need not be equitably tolled because there is no evidence that "extraordinary circumstances" beyond petitioner's control made it impossible for him to file his petition on time. See Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-619 (3rd Cir. 1998) ("[E]quitable tolling is proper only when the `principles of equity would make [the] rigid application [of a limitation period] unfair.' . . . Generally, this will occur when the petitioner has `in some extraordinary way . . . been prevented from asserting his or her rights.' . . . The petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' . . . Mere excusable neglect is not sufficient."); Calderon v. United States District Court for the Central District of California, 128 F.3d 1283, 1288 (9th Cir. 1997) (""Equitable tolling will not be available in most cases, as extensions of time will only be granted if `extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time."), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998) and cert. denied sub nom. Beeler v. Calderon, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d 648 (1998).
Perry's two writs of habeas corpus filed in 1983, one writ of habeas corpus filed in 1984, and one writ of habeas corpus filed in 1985 obviously do not come into play since the one-year statute of limitations did not begin to run until April 24, 1996. Moreover, Perry's fifth collateral attack filed on October 15, 1996 does not toll the statute of limitations inasmuch as the trial court denied this petition as time-barred on October 24, 1996 and the Alabama Court of Criminal Appeals affirmed the lower court's decision without written opinion on January 17, 1997. The Eleventh Circuit has recently held that a state court's holding that a petitioner's collateral attack on his conviction is time-barred is entitled to deference, Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000), and further, that "the state petition must meet state filing deadlines in order to toll the AEDPA statute of limitation," id. at 1258. Therefore, Perry's October 15, 1996 state collateral petition did not toll AEDPA's one-year statute of limitations.
In this case, petitioner has no argument whatsoever that his sixth state collateral petition, filed on May 26, 1999, was "properly filed," much less, "pending."
7. Because petitioner filed his habeas corpus petition on December 21, 1999, some thirty-two months after the one-year limitations period expired, same is due to be dismissed as time-barred.
CONCLUSION
The Magistrate Judge recommends that the present habeas corpus petition be dismissed pursuant to 28 U.S.C. § 2244(d) as time-barred.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.