SUPPLEMENTAL REPORT AND RECOMMENDATION

P. BRADLEY MURRAY, Magistrate Judge.

Michael Antonio Livingston, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter has been referred to the undersigned for the entry of a supplemental report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72, and General Local Rule 72(a)(2)(R). It is recommended that the instant petition be dismissed as time barred under the Anti-Terrorism and Effective Death Penalty Act's one-year limitations provision contained in 28 U.S.C. § 2244(d).1 Alternatively, it is recommended that the Court find that it is procedurally barred from reaching the merits of the claims raised by Livingston herein.

FACTUAL BACKGROUND

On March 7, 2002, Cynthia Meinhardt, an LPN working for Saad's Health Care, went to the home of J.B. Livingston to provide home health care to the elderly Livingston, which included checking his blood pressure, pulse and temperature, listening to his chest and stomach, and checking the feeding tube in his stomach. (Doc. 12, Exhibit 1, T.T. 66-70 & 74-75). Meinhardt completed her nurse's note and called for Livingston's grandson, Michael Livingston, to sign the note. (Id. at 75; see also id. at 142 (Denise Warren's testimony that Meinhardt's March 7, 2002 clinical note on J.B. Livingston was signed off by Michael Livingston)). Meinhardt told Michael, who was wearing a white T-shirt and blue jeans, that if he had any problems or if his "mother"2 needed to talk with her or anyone at Saad's to just give her a call. (Id. at 75.) Meinhardt had just gotten in her car and was turning around in the cul-de-sac when she received a call from Michael that his "mother" was on another house line and needed to talk to Meinhardt. (Id. at 76.) Meinhardt reentered the house, took the receiver from Michael, and said "hello" twice into the receiver before she was hit on the back of the head, fell to the floor, and was repeatedly stabbed by Michael Livingston. (Id. at 76-77). The victim knew Michael was her assailant based upon his voice, the clothes he was wearing, and the tattoo—"R.I.P. MLK"—on his left forearm. (Compare id. at 77 with id. at 71 (witness's initial description of the tattoo on Michael's left forearm)). Meinhardt managed to escape the attack and drive a few blocks to Faulkner Community College, where she called Saad's Health Care and her husband to inform them of the stabbing and await emergency assistance. (Id. at 78)3. During these telephone conversations, Meinhardt informed her Saad's co-employees and her husband that her patient's grandson stabbed her (T.T. 126),4 testimony which was corroborated by her husband (T.T. 164-65 (Kevin Meinhardt's testimony that his wife told him during their cell phone conversation on March 7, 2002, at approximately 1:40, that her patient's grandson stabbed her)) and two of her Saad's co-employees (T.T. 143 & 161 (Denise Warren's testimony that she heard a portion of Meinhardt's call to Saad's over the speaker option, specifically Meinhardt's statement that she was stabbed by her patient's grandson); see also T.T. 168-69 & 172 (Bonnie Cochan's testimony that she fielded the call from Meinhardt on March 7, 2002 and hit the speaker option on the phone when Denise Warren walked into her office; the witness testified that Meinhardt told them that Mr. Livingston's grandson attacked her)). In addition, Prichard police detectives who questioned Meinhardt in the Faulkner Community College parking lot testified that the victim told them that her patient's grandson on Truman Street stabbed her. (T.T. 382 & 418). And, finally, Lieutenant Dorothy Ferrell Strother, the supervisor of the Criminal Investigation Division of the Prichard Police Department, and Agent Simon Benson of the Alabama Bureau of Investigation, testified that following an initial interview conducted with Meinhardt at the Mobile Infirmary while she was being prepped for surgery,5 the investigators were summonsed back into Meinhardt's ER room and were informed by the victim that Michael Livingston was responsible for the attack (id. at 401 & 413) and that he was wearing a white T-shirt and blue jeans (id. at 401).6

Meinhardt was stabbed a total of ten times (T.T. 204). The two most severe injuries were a stab wound to the neck and a stab wound to the right back which punctured a lung and caused it to collapse partially (see id. at 200-02). The stab wound to the right back into the lung required a fairly strong degree of force to puncture all those layers and was life threatening given that a totally collapsed lung can cause death. (T.T. 203 & 206)7. Surgeons had to open up the neck wound more to see where the knife went and found that the knife punctured a major blood vessel. (See id. at 206).

Officer Willie Mabien was dispatched to the Truman Drive residence of J.B. Livingston very early in the investigation with instructions to detain Michael Livingston and transport him to the Prichard Police Department. (See T.T. 215-16 & 221-22). In addition, while Meinhardt was being treated at the hospital, law enforcement personnel were securing and searching the residence of J.B. Livingston. (See T.T. 347-59, 385 & 420). There was a lot of blood in the kitchen, more blood in the living room, down the hall and in the bathroom. (T.T. 384-85; see also T.T. 180-81 (Anna Hopper's testimony that there was blood "everywhere" in the kitchen)). A bloody, bent knife was discovered against the rear leg of the living room chair in which J.B. Livingston was sitting (T.T. 356-57)8 and a white T-shirt with bloodstains was found crammed in a small space in the laundry room (T.T. 386).9 A photograph of J.B. Livingston reflected blood on the back of the hands and left forearm and blood stains on his pajamas (T.T. 183, 186 & 373; see also T.T. 261 (ABI Agent Charles Higgins' testimony that J.B. Livingston had blood on the top of his hands)), and at least one witness saw blood in the palm of the elder Livingston's left palm. (T.T. 182 & 186). While J.B. Livingston's pajamas were recovered to test for the presence of blood (see T.T. 339-40), the lab was not given the elderly man's shoes/slippers. (T.T. 340-41).10 Michael Livingston's blue jeans, boxers and socks were taken from him at the police station later that afternoon (see T.T. 396-97) and tested positive for the presence of blood (T.T. 336); also recovered from the defendant was a pair of white tennis shoes (id. at 397) that did not have blood on them (id. at 341).

While Livingston was at the Prichard Police Department on March 7, 2002, and after he had been Mirandized (T.T. 255-56 (testimony from Detective Robert Miller that he advised Livingston of his constitutional rights and that Livingston signed and executed the form waiving his Miranda rights)), he made a statement to ABI Agent Charles Higgins in which he specifically denied stabbing Meinhardt (see id. at 268-69 (Higgins testified that Livingston told him he was in the bathroom and heard his grandfather and Meinhardt arguing and then a gurgling sound, prompting him to run into the kitchen, slip on a large puddle of blood and fall face first on the floor, and while Meinhardt exited the door and his grandfather sat back on his chair in the living room, he picked up the bloody knife from the kitchen floor and took it to the bathroom to clear it and then cleaned blood from his grandfather's hands and called 911 to report the attack; Livingston told Higgins he cleaned the knife and hid his blood-soaked shirt because he was scared and was trying to protect his grandfather); cf. T.T. 461 (testimony of Michael Livingston's girlfriend, Marquita Lockhart, that she spoke with Michael at about 1:00 or 1:10 on March 7, 2002, and he told her in a "shaky" voice that there was blood all over the house and he was "wondering what was going on.")), instead blaming his grandfather for the attack (T.T. 290; see also id. at 179 & 181 (Anna Hopper's testimony that Michael initially told her that his grandfather had cut himself and an ambulance was on the way but later, when the speech pathologist asked J.B. Livingston where he had been cut, Michael Livingston said his grandfather had not been cut but, instead, had cut the nurse)).

Based upon the physical evidence at the scene, Michael Livingston's denial to Agent Higgins, the arguable conflicting nature of Meinhardt's identifications of her assailant, and medical record evidence (and testimony) of J.B. Livingston's history of physical aggression/violence and psychotic behavior, a robust defense was mounted by Michael Livingston's trial attorney, Jeff Deen,11 in an attempt to create reasonable doubt with respect to his client's guilt. To this end, the defense called attention to Meinhardt's testimony that she told police at the hospital about Michael's tattoo, voice and clothes (T.T. 89 & 122), which none of the investigators noted in their reports (see, e.g., T.T. 282 & 285-86 (Higgins' report indicates that Meinhardt told him nothing about getting into her car and driving back or anything about a tattoo, the clothes worn by the assailant, the voice of the assailant or any name calling; instead, she simply told him she was attacked by a young black male wearing a mask); T.T. 404 (Lieutenant Ferrell Strother's testimony that during the first part of her interview with Meinhardt at the hospital, the victim mentioned nothing about her assailant's tattoos, clothing, or voice)), but was unable to recall telling them that someone struck her in the back of the head, threw her to the floor, started stabbing her and said, "Bitch, I want you to get out of here[]" and that her assailant was wearing a mask (id. at 121 & 123-24; compare id. with T.T. 160 (Denise Warren's cross-examination testimony that Meinhardt said nothing about tattoos, masks, T-shirts or voices during the telephone call she made to Saad's); 171-73 (Bonnie Cochran's cross-examination testimony that Meinhardt said nothing over the phone call about her attacker having tattoos or a mask or him saying "Fucking white bitch"); and e.g., T.T. 400 (written report of Strother reflects that Meinhardt initially told the investigator that she was called back to the house by Michael before she reached her car for a phone call and that after speaking into the phone in the house she was struck on the back of the head, thrown to the floor, and the assailant started stabbing her and said "Bitch, I want you out of here")).12 In addition, Meinhardt admitted she had never had any problems with Michael (T.T. 106) and Anna Hopper, a speech therapist, who went to the Truman Drive residence of J.B. Livingston within minutes of the attack on Meinhardt (see T.T. 178 (Hopper arrived at the residence at 1:50 p.m.)) for an unannounced therapy session (see id. at 188), testified on cross-examination that Michael was very polite (id. at 193) and took no action to take her phone or prevent her from leaving the house (id. at 192 & 195). Defense counsel also established through testimony and treatment records, including those generated by Saad's, that on the morning of March 7, 2002, J.B. Livingston refused care (T.T. 153-54), a fact Meinhardt was unaware of (T.T. 108), that J.B. Livingston had a long history of aggression/violence/psychotic behavior toward caregivers and others (see, e.g., T.T. 137, 139-40, 243-48, 295-96, 308-26, 431-34, 438-42 (testimony from Ivery Adams that her father, J.B. Livingston, physically abused her mother, was aggressive with nurses, and there were even times she had to run from him and, further, that her father had a long history of hospitalizations based on his psychotic and violent behaviors); T.T. 482-83 & 497 (Michael Livingston, Sr.'s testimony that his father would "wrestle" with him when he did not want to do something and that his father wrestled like a tough old man, not like a child)), that J.B. was quite agile, ambulatory, and capable of moving around (T.T. 435-37, 458-59, 468-70, 482, 484-85), that J.B. could free himself from restraints (T.T. 442-43), and that J.B. was certainly strong enough to pick up a book (T.T. 444 & 483 (Michael Livingston, Sr.'s testimony that his father was capable of picking up a book and even heavier items, including a hammer); cf. T.T. 467 & 470 (Joann Burrell's testimony that she had seen her uncle, J.B. Livingston, walk around his house carrying a knife one day during the two weeks in February of 2002 that she cared for him)).13 Defense counsel then sought to contrast J.B. Livingston's violent tendencies/behaviors with Michael Livingston's reputation in the community as a peaceful, non-violent person. (T.T. 448, 459, 475, 477, 480 & 488; but cf. T.T. 450 & 475 (testimony of a few defense witnesses that their testimony regarding Michael's peaceable/non-violent reputation might change if they knew he had threatened to "kick" a neighbor's "ass" and burn down her daycare center)).

While certain defense witnesses saw J.B. Livingston as capable of attacking Meinhardt, consistent with Michael's statement to Agent Higgins, the State offered the opinion testimony of Dr. William Higgs, a cardiovascular surgeon, that a hypothetical 86-year-old with an ejection fraction of 19%, like J.B., would be physically incapable of moving from one room to another, strike a blow to the back of someone's head and stab that person 10 times with a knife (T.T. 236-3814; see also T.T. 299-300 (Dr. Zenia Zappher, a psychiatrist, testified that J.B. Livingston would not be physically capable of leaning over and striking someone with a knife multiple times)) and Zappher's further testimony that a hypothetical person like J.B. would not have the mental/cognitive capacity to move from room to room, obtain a weapon and carry out an attack involving 8 to 10 blows (T.T. 300-01).15

A jury of Livingston's peers returned a verdict finding him guilty of the attempted murder of Cynthia Meinhardt (T.T. 559-60), clearly signaling that they found credible the testimony of the State's witnesses, particularly the eyewitness testimony of the victim. And as eruditely noted by Petitioner's own appellate counsel "[t]he evidence in the case clearly presented a jury question with regard to Livingston's innocence or guilt." (Doc. 12, Exhibit 3, at 20).

Immediately following the jury's verdict and the dismissal of the panel, but before the foreman of the jury departed the courthouse, the following occurred:

(T.T. 561-63 & 563-65.)

On May 9, 2003, Livingston was sentenced to life imprisonment. (Doc. 12, Exhibit 1, Sentencing Transcript, at 13)16. Defense counsel entered oral notice of appeal (id. at 14), after which the Court found Livingston indigent and appointed Glenn Davidson to represent him on appeal. (Id.)17.

On December 10, 2003, appellate counsel filed a no-merit brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and concurrently sought permission to withdraw as counsel of record for Livingston. (See Doc. 12, Exhibit 3.) The following day, December 11, 2003, the Alabama Court of Criminal Appeals entered the following order, a copy of which was sent to Livingston:

(Doc. 12, Exhibit 4, ORDER (emphasis supplied; footnote added)). That Livingston received a copy of the appellate court's order is clear from his December 19, 2003 filing of a letter—the letter was dated December 17, 2003—advising that he wished to attack on appeal the trial court's denial of his motion for judgment of acquittal at the conclusion of the State's case-in-chief, arguing that the State failed to prove every element of the charged crime of attempted murder. (See Doc. 12, Exhibit 4A, at 2.) In addition, that letter from Livingston advised the appellate court that he consented to Davidson's withdrawal and requested the appointment of new counsel to raise the foregoing issue. (Id.)19.

The Alabama Court of Criminal Appeals affirmed Livingston's conviction and sentence on February 20, 2004. See Livingston v. State, 910 So.2d 832 (Ala. Crim. App. Feb. 20, 2004) (table).

(Doc. 12, Exhibit 7, at 1-8 (most internal quotation marks and brackets omitted; some citations and footnotes omitted)).

Petitioner did not file a petition for rehearing in the Alabama Court of Criminal Appeals (Doc. 1, at 3) and clearly did not seek certiorari review by the Alabama Supreme Court inasmuch as the Alabama Court of Criminal Appeals issued its certificate of judgment of final affirmance on March 10, 2004 (Doc. 12, Exhibit 8).

After Livingston's direct appeal was concluded (see id.), the State filed a response to his Rule 32 petition on May 11, 2004, therein seeking the dismissal of the collateral petition (see Doc. 12, Exhibit 9C). However, neither the State's response/motion to dismiss or the trial court's May 11, 2004 order denying Livingston's Rule 32 petition (see Doc. 12, Exhibit 9D)23 were docketed (see Doc. 12, Exhibit 9, at 4-5; compare id. with Doc. 12, Exhibit 2A, at 7)24. Indeed, the docket sheets reflect the trial court's granting of numerous requests by Petitioner's retained counsel, Charles Wilson, Esquire, to reset the Rule 32 petition. (Doc. 12, Exhibit 2A, at 7-8; see also Doc. 12, Exhibits 9E & 9G (motion to continue filed May 14, 2004 and motion to continue filed June 23, 2004)). When, on June 24, 2004, the court reset the petition for June 30, 2004, the trial judge ordered that Livingston "be brought back from the DOC." (Doc. 12, Exhibit 2A, at 8; compare id. with Doc. 12, Exhibit 9G (face of the motion to continue Rule 32 hearing reflects a resetting to June 30, 2004) and Doc. 12, Exhibit 9F (request emailed to the transfer agent supervisor at Kilby Correctional Facility on June 23, 2004 that Livingston be transferred to the Mobile County Metro Jail)). And when, on June 30, 2004, the court reset the case for a Rule 32 hearing on August 6, 2004, the court ordered Livingston "to remain at Metro[.]" (Doc. 12, Exhibit 2A, at 8; see also Doc. 12, Exhibit 9H (notice by the Clerk's Office that the Court ordered that Livingston was to be held at the Mobile County Metro Jail for the hearing on August 6, 2004)). And, finally, when the case was, once again, reset for a hearing on August 10, 2004 (Doc. 12, Exhibit 2A, at 8), the hearing was not conducted on August 10, 2004, and, that same date, Livingston was ordered to be sent back to the penitentiary, the trial judge noting on the docket sheet that "Rule 32 has already been denied on May 11, 2004." (Id.).

For the next (approximately) ten years, Livingston filed no other state collateral petition (Doc. 1, at 4-5) or, indeed, any motion/petition of any ilk. Petitioner now avers, by pointing to various letters he allegedly penned over the years to Judge Thomas, his trial attorney (Jeff Deen), and Assistant District Attorney John Furman, that he was duly diligent in attempting to garner a Rule 32 evidentiary hearing and exhaust his state collateral remedies before filing his § 2254 petition in this Court. (See Attachments to Doc. 8.) There are a total of four letters to Judge Herman Thomas, dated August 27, 2004, September 14, 2004, February 24, 2005, and November 13, 2007, the first three of which simply ask the trial judge for a new court date for his evidentiary hearing (see Doc. 8, Exhibit A); one letter addressed to Jeff Deen and dated March 3, 2005, asking Deen to tell Petitioner's father what to do about him getting a new court date on his Rule 32 petition (Doc. 8, Exhibit I); and one letter addressed to Assistant District Attorney John Furman, dated May 24, 2007, asking for his assistance in receiving a Rule 32 evidentiary hearing. (Doc. 8, Exhibit M).25 Most curious about the letters to Deen and Furman is that neither man represented Livingston during his Rule 32 collateral proceedings; instead, Petitioner was represented by retained counsel, Charles Wilson, and yet there are no letters to Wilson about any "new" setting for his Rule 32 evidentiary hearing, the status of his Rule 32 petition, or about the need to file his § 2254 petition.26 In addition, with respect to the letters allegedly penned to Judge Thomas, the undersigned finds it interesting that none of these four letters made it into the record, particularly since three letters from Livingston, dated January 19, 2005, March 6, 2006, and May 23, 2006, are part of the record (Doc. 12, Exhibit 9I).27

On May 12, 2014, Livingston filed a pleading in the Mobile County Circuit Court seeking either the Clerk of Court's compliance (or the trial court's compliance) with Alabama's "Presumptive Sentencing Standards Guidelines[.]" (Doc. 12, Exhibit 10.) Petitioner's motion was denied by endorsement on April 14, 2016 by Circuit Judge Michael A. Youngpeter. (Doc. 12, Exhibit 11 ("The presumptive guidelines do not apply to your case.")). And on April 13, 2016, Livingston filed a motion seeking placement in Community Corrections (Doc. 12, Exhibit 12, at 2) and attached thereto a letter containing an implicit admission of guilt (see id. at 3 ("I Michael Antonio Livingston promise to obey all rules and regulations of Community Corrections to the fullest no exceptions. I made a mistake in the past that I'm truly sorry and remorseful for. I know GOD has forgiven me and is willing to give me another chance at life. I'm not the man that I use[d] to be. Prison has truly changed my whole outlook on life.")).28 This motion was also denied by endorsement on April 14, 2016 by Judge Youngpeter: "Due to the nature of the offense, you do not qualify for diversion to community corrections. Any early release is in the hands of DOC through parole." (Doc. 12, Exhibit 13).

On April 26, 2016, Livingston filed a request for a new trial (Doc. 12, Exhibit 14), which the trial court, on April 27, 2016, deemed as an attempt to file a timely Rule 32 petition (Doc. 12, Exhibit 15). "The Court accepts said pleading as a Rule 32 petition, but herein ORDERS that Petitioner, within forty-five (45) days, resubmit his petition in compliance with Rule 32.6 (a) & (b) of the Alabama Rules of Criminal Procedure. The filing date of a resubmitted petition will relate back to the date of Petitioner's April 26, 2016, pleading." (Id.). When Livingston did not comply with the trial court's order dated April 27, 2016, "the request/petition dated April 21, 2016" was denied. (Doc. 12, Exhibit 16.)

By letters dated September 7, 2016, and October 11, 2016, Livingston again requested a new trial (Doc. 12, Exhibit 16A, at 2-5), both letters requesting the reviewing judge to look into his case (see id. at 3 & 5) and the former letter referencing a blind man's ability to see the truth of his innocence (see id. at 4).29 And although both letters make reference to Petitioner's December 17, 2003 Rule 32 petition, and subsequent proceedings following the conclusion of his direct appeal (see id. at 2 & 4), the undersigned simply quotes at some length from the letter dated October 11, 2016, as follows:

(Id. at 2.) On October 19, 2016, the following endorsement was made: "I cannot `look' into your case unless you file a Rule 32 petition. You also must either pay the filing fee for such a petition or file an In Forma Pauperis petition. My Orders dated April 27, 2016 and August 3, 2016 explained that to you." (Id.)30

Livingston filed the instant federal habeas corpus petition in this Court on or about March 6, 2017 (see Doc. 1, at 54), and therein contends that his trial attorney provided constitutionally ineffective assistance by failing: (1) to allow Petitioner to testify in his own defense in order to rebut or refute Meinhardt's testimony and to negate Agent Huggins' testimony regarding the statement he made to the agent on March 7, 2002; (2) to subpoena Meinhardt's cell phone records in order to "test" her trial testimony, particularly the testimony that she called her husband and Saad's co-employees and informed them that her patient's grandson stabbed her; (3) to call as witnesses medical staff members from the Harper Center and the Mobile Infirmary to testify regarding the assaults they endured at the hands of his grandfather, J.B. Livingston; (4) to call as witnesses other home healthcare nurses from Saad's, particularly Cheryl Moore, to testify about the conduct of his grandfather on the day Meinhardt was stabbed and on other days; (5) to object to Dr. Zappher's testimony regarding treatment that J.B. Livingston received at the Harper Center that she did not actually provide; (6) to subpoena the security tapes from the daycare center across from J.B. Livingston's house; and (7) to preserve for review an instance of jury tampering.

Although the undersigned initially entered a Rule 4 report and recommendation that Livingston's § 2254 petition be dismissed as time-barred (see Doc. 4), the Court thereafter declined to adopt the report and recommendation, instead holding it in abeyance pending the response of Warden Streeter (Doc. 9, at 1)31. The undersigned now simply considers the equitable tolling arguments made by the Petitioner in his response to the Warden's answer (see Doc. 14, at 2-15). Therein, Livingston contends that he is entitled to equitable tolling of the one-year limitations period because the trial court never sent him notice (or a copy) of its May 11, 2004 dismissal order and, therefore, he could not have known of the dismissal until such notice was given (id. at 6; see also id. at 9 ("There is an issue about whether the petitioner received notice of Judge Herman Thomas[`s] May 11, 2004, order dismissing his Rule 32 petition. The record provided by the State surely does not show any proof that this order was sent since Judge Thomas's order does not contain a certificate of service and no other order of dismissal is provided."); see id. at 12 ("The Courts denied him th[e] right to exhaust his remedies by failing to provide fair notice of its denial.")), which he alleges occurred "on July 10, 2017, the day he received his trial transcripts per [] this court's order." (Id. at 14.) In addition, Petitioner makes conclusory references to his ignorance of the law (Doc. 14, at 10), his family's financial inability to hire an attorney to file his Rule 32 petition (id.),32 that he did not have a copy of the trial transcript at the time of the filing of his state collateral petition (see id. at 10-11), and his sporadic access to the law library at Bibb County Correctional Facility (see id. at 11-12), as perhaps impacting his ability to file a timely federal petition; however, it is not at all clear that he has cited to any of these "circumstances" in support of his equitable tolling argument (see, e.g., id. at 11 ("Without the record it is impossible to review trial and pretrial proceedings thoroughly and point to specific errors that were made in violation of constitutional guarantees. Even so, this is not an excuse to toll the time so the petitioner had to use whatever resources ADOC provided him with.")).

With respect to the Respondent's procedural default defense, Petitioner makes the following argument:

(Doc. 14, at 15-18 (emphasis supplied)).

CONCLUSIONS OF LAW

A. Statute of Limitations. 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 Dep't 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—

28 U.S.C. § 2244(d).

Subsections (B), (C), and (D) of § 2244(d)(1) clearly do not apply to petitioner's case and, therefore, the timeliness of Livingston's petition must be calculated under § 2244(d)(1)(A) based upon the date on which his attempted murder conviction became final. "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, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000). This rule from Guenther is obviously not applicable in this case because Livingston's conviction became final in 2004.

Section 2244(d)(1)(A) specifically provides that the one-year limitations period will run from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review[.]" On direct appeal, the Alabama Court of Criminal Appeals affirmed Livingston's conviction and sentence on February 20, 2004. Livingston v. State, 910 So.2d 832 (Ala. Crim. App. Feb. 20, 2004) (table). Because Livingston did not seek rehearing in the Alabama Court of Criminal Appeals or petition for certiorari review in the Alabama Supreme Court, his conviction became final on March 10, 2004, when the Alabama Court of Criminal Appeals issued a certificate of final judgment of affirmance (Doc. 12, Exhibit 8). Brown v. Hooks, 176 Fed. Appx. 949, 951 (11th Cir. Apr. 18, 2006) ("On March 23, 2001, the Alabama Court of Criminal Appeals affirmed his conviction. Brown did not petition for certiorari review in the Alabama Supreme Court, and his conviction became final on April 10, 2001, when the Certificate of Judgment issued.");33 see also Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) ("Bridges pled guilty to terroristic threats, aggravated assault and stalking charges, and was sentenced to 26 years' imprisonment on November 12, 1996. He did not appeal his convictions and sentences, but he did request that his sentence be reviewed by a sentence review panel, pursuant to O.C.G.A. § 17-10-6. . . . As provided in 28 U.S.C. § 2244(d)(1)(A), his judgment became final on the date that the time for seeking direct review expired; this date was not affected by his application for sentence review, because an application for sentence review is not a part of the direct appeal process under Georgia law. . . . Accordingly, Bridges' judgment of conviction became final on December 21, 1996, the date on which his 30-day right to appeal the November 21, 1996 judgment expired."); Tinker v. Moore, 255 F.3d 1331, 1332 & 1333 (11th Cir. 2001) ("Tinker was convicted on the robbery charge, and on January 29, 1997, the Third District Court of Appeal affirmed his conviction. . . . The mandate issued on February 14, 1997. . . . Under Florida law, a judgment against a criminal defendant becomes final upon issuance of the mandate on his direct appeal. . . . Tinker's mandate issued on February 14, 1997, and thus he had until February 13, 1998, to file his § 2254 petition, absent tolling of the limitations period."), cert. denied, 534 U.S. 1144, 122 S.Ct. 1101, 151 L.Ed.2d 997 (2002).34 Thus, Livingston's limitations period would have commenced on March 10, 2004, and expired on March 10, 2005, had Petitioner not already have pending in the Circuit Court of Mobile County, Alabama a Rule 32 petition, which was filed on or about December 17, 2003 and held in abeyance until after his direct appeal was completed on March 10, 2004. In other words, because Livingston had already filed a Rule 32 petition while his direct appeal was pending, he is able to take advantage of the tolling provision built into § 2244(d), 28 U.S.C. § 2244(d)(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 section."); 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 in [subsection (d)].'"), and his limitations period was tolled until, as the respondent argues (Doc. 12, at 16) with no contrary argument from Livingston (see Doc. 14), June 22, 2004, forty-two days after the trial court's May 11, 2004 dismissal of his Rule 32 petition (see Doc. 12, at 16, citing Ala.R.App.P. 4). Compare McMillan v. Secretary for the Dep't of Corrections, 257 Fed.Appx. 249, 252 (11th Cir. Dec. 6, 2007) ("The Supreme Court recently clarified that `[t]he time that an application for state postconvicton review is "pending" includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.' Evans v. Chavis, 546 U.S. 189, 191, 126 S.Ct. 846, 849, 163 L.Ed.2d 684 (2006) . . . . This Court has further held that an application remains pending until the time to seek appellate review expires if a petitioner does not file a notice of appeal. Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006)." (emphasis in original)) with Couch v. Talladega Circuit Courts, 2013 WL 3356908, *3 n.10 (N.D. Ala. Jul. 3, 2013) ("Rule 32.10 of the Alabama Rules of Criminal Procedure provides that either party may appeal a circuit court's ruling on a Rule 32 petition by filing a timely notice of appeal in accordance with Rule 4 of the Alabama Rules of Appellate Procedure. . . . Rule 4, in turn, provides that a notice of appeal must be filed `with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.'" (citations omitted)). Thus, Livingston's one-year limitations period began running on June 22, 2004 and expired on June 22, 2005, almost twelve (12) years before he filed the instant habeas corpus petition in this Court on March 6, 2017. (Doc. 1, at 54). And because Petitioner makes no "further" argument in favor of statutory tolling,35 the only avenue by which this Court can consider the merits of petitioner's § 2254 petition is by finding that he is entitled to equitable tolling of AEDPA's one-year limitations period, or, otherwise, by finding that he has established his factual innocence of the crime— attempted murder—for which he was convicted by a jury of his peers on April 2, 2003.

In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the Supreme Court specifically held, for the first time, that "§ 2244(d) is subject to equitable tolling in appropriate cases[,]" id. at 645, 130 S.Ct. at 2560, and reiterated "that a `petitioner' is `entitled to equitable tolling' only if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649, 130 S.Ct. at 2562. For its part, the Eleventh Circuit has long embraced the doctrine of equitable tolling with regard to the one-year limitations period at issue: "Equitable tolling is to be applied when `"extraordinary circumstances" have worked to prevent an otherwise diligent petitioner from timely filing his petition.' . . . Thus, the petitioner must show both extraordinary circumstances and due diligence in order to be entitled to equitable tolling." Diaz v. Secretary for the Dep't of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (citation omitted). "Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore, it permits equitable tolling `when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.'" Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (citation omitted). Thus, the one-year limitations provision need not be equitably tolled unless there is 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 Dep't 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."). The Supreme Court in Holland indicated that "[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence[,]" id. at 653, 130 S.Ct. at 2565, and gave the following guidance with respect to "extraordinary circumstances":

Id. at 651-652, 130 S.Ct. at 2564. It is also clear that a federal court can consider the merits of an untimely § 2254 motion if the petitioner establishes that he is factually innocent of the crime for which he was convicted. See San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.) ("The actual innocence exception is `exceedingly narrow in scope,' and the petitioner must demonstrate that he is factually innocent rather than legally innocent."), cert. denied sub nom. San Martin v. Tucker, 565 U.S. 843, 132 S.Ct. 158, 181 L.Ed.2d 73 (2011).

In this case, petitioner has not established that the instant habeas corpus petition was timely filed nor has he established that extraordinary circumstances and due diligence counsel equitable tolling of the limitations period. Compare Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) ("`The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner[.]'") with Pugh, supra, 465 F.3d at 1300-01 ("Pugh bore the burden of establishing that equitable tolling was warranted."). The primary argument made by Petitioner, as aforesaid, is that he is entitled to equitable tolling of the one-year limitations period because the trial court never sent him notice (or a copy) of its May 11, 2004 dismissal order and, therefore, he could not have known of the dismissal until such notice was given (Doc. 14, at 6; see also id. at 9 ("There is an issue about whether the petitioner received notice of Judge Herman Thomas[`s] May 11, 2004, order dismissing his Rule 32 petition. The record provided by the State surely does not show any proof that this order was sent since Judge Thomas's order does not contain a certificate of service and no other order of dismissal is provided."); see id. at 12 ("The Courts denied him th[e] right to exhaust his remedies by failing to provide fair notice of its denial.")), which he alleges occurred "on July 10, 2017, the day he received his trial transcripts per [] this court's order." (Id. at 14).

The Eleventh Circuit has "ruled that a petitioner was entitled to equitable tolling where the state court had assured the petitioner that it would contact him as soon as a decision was made, the court subsequently sent notice of the decision to the wrong person, and the petitioner demonstrated diligence in inquiring about the status of his case when the court failed to contact him after 15 months[;]" however, "a habeas petitioner is not necessarily entitled to `equitable tolling until he receives notice.'" Logreira v. Secretary for the Dep't of Corrections, 161 Fed.Appx. 902, 903 (11th Cir. Jan. 11, 2006) (citing and quoting Knight v. Schofield, 292 F.3d 709, 710-11 & 711 (11th Cir. 2002)), cert. denied, 549 U.S. 858, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006).

Initially, the Petitioner's argument that he did not receive notice of the trial court's May 11, 2004 dismissal of his Rule 32 petition until July 10, 2017 (Doc. 14, at 14) is belied by the trial court's August 10, 2004 entries on the docket sheet that Livingston was to be sent back to the penitentiary and that the "Rule 32 has already been denied on May 11, 2004." (Doc. 12, Exhibit 2A, at 8.) In addition, that Livingston received notice, on August 10, 2004, that his Rule 32 had previously been denied is consistent with the failure of Petitioner's retained Rule 32 counsel, Charles Wilson, to file any further requests for an evidentiary hearing setting and Petitioner's failure to any in manner communicate with or contact Wilson about a future evidentiary hearing setting. However, even if the foregoing conclusions are somehow inaccurate, Petitioner's equitable tolling argument still fails because although he provided evidence of sporadic attempts to contact Mobile County Circuit Judge Herman Thomas through the mail to inquire about the status of his Rule 32 petition/evidentiary hearing setting, in the form of four letters penned from August 14, 2004 through November 14, 2007,36 he has not shown that he took any steps, other than mailing letters,37 to gain information regarding his Rule 32 petition.38 In particular, Petitioner has offered no evidence that he filed any motions with the trial court regarding the status of his Rule 32 petition, that he called the court about the status of his petition, or that he called (or sought help) from his retained Rule 32 counsel, Charles Wilson, asking that he contact the trial court about the status of his petition or a new evidentiary hearing setting. Indeed, the Petitioner has offered no evidence that he communicated with Wilson (whether by letter or telephone call) at any time after August of 2004 to discuss the status of his Rule 32 petition, though retained Rule 32 counsel39 certainly represented the most logical person for Petitioner to have contacted. What most impresses the undersigned about the foregoing facts are the large swaths of time that Petitioner made no inquiries about the status of his Rule 32 petition, essentially from 2008 forward, but even if this Court considers every letter penned by Livingston to the trial court to have contained an implicit request regarding the status of his Rule 32 petition, Petitioner still made no inquiries about the status of his Rule 32 petition anytime in 2010 through 2012 and certainly made no such inquiries anytime from 2014 through April of 2016. See Diaz, supra, 362 F.3d at 702 ("In this case, Diaz cannot show due diligence. After waiting 258 days to file his initial federal habeas petition, he waited another 274 days before filing his second federal petition after his motion for rehearing of his state habeas petition was denied. Without considering the time that the initial federal habeas petition was pending or the time that the state collateral proceedings were pending, the two foregoing delays total 532 days, exceeding Diaz's one-year time limitation by 167 days. Diaz offers no excuse for this delay. Thus, this delay alone constitutes a lack of due diligence and disentitles Diaz to equitable tolling." (footnotes omitted)). And, finally, when the Mobile County Circuit Court informed Livingston in October 2016 that it could not look into his case unless he filed a Rule 32 petition, he waited almost another five months before filing the instant petition.

In light of the foregoing, the undersigned recommends that this Court find that Livingston has failed to meet his burden of showing that he exercised sufficient due diligence in inquiring with the Mobile County Circuit Court about the status/disposition of his Rule 32 petition so that he could file his federal petition.40 Cf. Pollock v. Secretary, Dep't of Corrections, 664 Fed.Appx. 770, 773 (11th Cir. Oct. 5, 2016) ("Even assuming the state court's failure to provide notice was an `extraordinary circumstance' beyond Pollock's control, it does not support Pollock's claim the district court clearly erred in determining he failed to show he pursued his claims with due diligence.").

Finally, Livingston has not shown that he is entitled to have the untimeliness of his § 2254 petition excused based on actual innocence. In McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), the Supreme Court specifically held that "actual [factual] innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations." Id. at ___, 133 S.Ct. at 1928. However, the Supreme Court also notably cautioned that "tenable actual-innocence gateway pleas are rare[.]" Id. (emphasis supplied). "`[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'" Id., quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995) (other citation omitted). Here, of course, Livingston makes no actual innocence argument because he has offered no new evidence establishing his actual (factual) innocence of attempted murder. Instead, petitioner simply contends that the victim's identification testimony was manufactured and that had his attorney allowed him to testify, and called other witnesses from the Harper Center and/or the Mobile Infirmary to testify about the assaultive/violent propensities of his grandfather, even a "blind man" (much less the jury) would have found him not guilty of the attempted murder of Cynthia Meinhardt. In other words, petitioner's claims/arguments do not support an actual (factual) innocence claim in accordance with McQuiggin because they rely on the evidence presented at Petitioner's trial (or evidence that could have been presented at his trial), not on any "new evidence." Thus, it is clear that petitioner cannot take advantage of the actual innocence gateway recognized in McQuiggin.41

In short, the undersigned concludes that nothing other than Livingston's own lack of due diligence is responsible for the untimeliness of the filing of the instant petition. This is not one of those rare cases in which principles of equitable tolling can save petitioner from AEDPA's one-year limitations period, nor has he established his actual innocence of the offense for which he was convicted by a jury of his peers. However, even assuming this Court was to take the prodigious and speculative leap of concluding that Petitioner is entitled to equitable tolling of the one-year limitations period for a period of just shy of twelve years, such conclusion would not entitle Petitioner to habeas corpus relief since this Court is procedurally barred from reaching the merits of the claims Livingston has raised in his federal habeas corpus petition.

B. Procedural Default Doctrine. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitioner's federal claims because the petitioner fails to meet a state procedural requirement. Id. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).

The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.

Id. at 730-731, 111 S.Ct. at 2554.

An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has long held

Id. at 731, 732, 111 S.Ct. at 2554-2555, 2555.

In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision `fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar."). In all other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739, 111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed presumption is inapplicable to a claim that is never presented to the state courts. Id. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Moreover, the presumption "looks through" unexplained orders to the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).

501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue. Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) ("Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, supra, 22 F.3d at 1549.

When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice." Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults." Id. at 750-751, 111 S.Ct. at 2565.

McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (internal quotation marks and citations omitted).

In his answer, respondent asserts that all of petitioner's claims are procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999) due to Livingston's failure to "fairly present" these claims throughout "one complete round of the State's established appellate review process[,]" id. at 845, 119 S.Ct. at 1732 (see Doc. 12, at 19-22). Compare McNair v. Campbell, 416 F.3d 1291, 1302 & 1305 (11th Cir. 2005) ("Habeas petitioners generally cannot raise claims in federal court if those claims were not first exhausted in state court. . . . In order to be exhausted, a federal claim must be fairly presented to the state courts. . . . [I]n order to ensure that state courts have the first opportunity to hear all claims, federal courts `have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.' . . . It is well established that when a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available, the failure also constitutes a procedural bar. . . . In such a situation, the Supreme Court has held that the petitioner has failed to properly exhaust his state court remedies and therefore has procedurally defaulted his claims. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999)."), cert. denied, 547 U.S. 1073, 126 S.Ct. 1828, 164 L.Ed.2d 522 (2006), with Kelley v. Secretary for the Dep't of Corrections, 377 F.3d 1317, 1344 & 1351 (11th Cir. 2004) ("[T]he prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief. For example, habeas petitioners may not present particular factual instances of ineffective assistance of counsel in their federal petitions that were not first presented to the state courts. . . . Dismissing a mixed petition is of little utility [] when the claims raised for the first time at the federal level can no longer be litigated on the merits in state court because they are procedurally barred. In such a case, requiring the petitioner to return to state court only to make a futile application for relief simply delays the federal courts' adjudication of his petition."), cert. denied, 545 U.S. 1149, 125 S.Ct. 2962, 162 L.Ed.2d 906 (2005).

Petitioner frankly admits that all of the claims he has raised in his federal petition are new claims, not exhausted in state court, and subject to default under O'Sullivan v. Boerckel, supra, but that he is "saved" by the exception that "`some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" (Doc. 14, at 15.) There can be no question but that the just-quoted language is directed to only one prong of the cause and prejudice exception to the procedural default doctrine, namely the cause prong, see, e.g, McCleskey, supra, 499 U.S. at 493-494, 111 S.Ct. at 1470, and Petitioner nowhere in his response makes any showing of actual prejudice as a result of the alleged violations of federal law (see id. at 16-18); therefore, this Court could legitimately conclude that the cause and prejudice exception to the procedural default doctrine is not applicable in this case. See Macklin v. Singletary, 24 F.3d 1307, 1313 (11th Cir. 1994) (in abuse of the writ case, appellate court suggests that habeas courts need perform no analysis when the petitioner fails to argue an exception to application of the doctrine), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995). However, the undersigned does not chart this course and, instead, takes direct aim at Petitioner's cause argument, namely, that his trial transcript/record on appeal was withheld from him for over 14 years, such that he could not raise the claims asserted in his federal petition until he received those records on an unidentified date in 2017 (see Doc. 14, at 16-18).

Petitioner's cause argument is a total fabrication. Indeed, Petitioner did not just "receive" a copy of his trial transcript/record on appeal sometime in 2017, he had a copy of the trial transcript at the time he filed his Rule 32 petition in the Circuit Court of Mobile County, Alabama on or about December 17, 2003 (and presumably has retained that copy of his trial transcript to date). As Petitioner himself recognizes (see Doc. 14, at 16), the record reflects that appellate counsel verified in his Anders brief that he forwarded to Livingston a copy of the record on appeal and a copy of the appellate brief (Doc. 12, Exhibit 3, at 28; see also Doc. 12, Exhibit 4, ORDER ("Counsel has also advised this Court that the appellant was served with a copy of the no-merit brief ad furnished with the appellant's copy of the record on appeal.")), and that Livingston received a copy of the record on appeal/trial transcript and had a copy of it in his possession when he filed his Rule 32 petition is made evident by Livingston's citations to specific portions of his trial transcript in his Rule 32 petition (see, e.g., Doc. 12, Exhibit 9A, at 14-15 ("In the present case the State submitted into evidence a drawing (see) TR-73 at line 11 that states, `MR. Deen, Judge, I assume she's gonna tie that up later with another witness, whoever drew it? Ms. Francez states, I am Judge. Mr. Deen States, `That's fine[.] [I]f she's using it for illustration purposes, if somebody is going to say they drew it, I don't object to her showing it to the jury.[`]"); compare id. with Doc. 12, Exhibit 1, T.T. 73 (same)). It is apparent, therefore, that Petitioner's cause argument is due to be rejected because it is based on an utter falsehood,42 it being clear that Livingston was fully equipped with the trial transcript to make all claims raised in his federal petition when he filed his Rule 32 petition in the Circuit Court of Mobile County in December of 2003.43

The fundamental miscarriage of justice/actual innocence exception does not apply in this case because Petitioner has not satisfied (nor, indeed, has he tried to satisfy in his response to the respondent's answer) the standard set forth in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). That standard requires Livingston to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Id. at 496, 106 S.Ct. at 2649-2650. To be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); see also id. at 327, 115 S.Ct. at 867 ("To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence."). "It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998) (citation omitted). Livingston simply has not come forward with any new reliable evidence—for example, a retraction of testimony from the victim—that establishes his actual factual innocence of the attempted murder of Cynthia Meinhardt for which he was convicted on April 2, 2003, his many conclusory protestations of innocence notwithstanding. Accordingly, this case is not one of those rare cases in which the actual innocence exception is applicable.

C. Certificate of Appealability. Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2254, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied on procedural grounds without reaching the merits of the underlying constitutional claims, "a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) ("Under the controlling standard, a petitioner must `sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."'"). Inasmuch as equitable tolling is an extraordinary remedy which the Eleventh Circuit has rarely granted, see Diaz, supra, 362 F.3d at 701 ("[T]his court has rejected most claims for equitable tolling."), and petitioner has defaulted the claims he wishes this Court to address pursuant to O'Sullivan v. Boerckel, supra, a reasonable jurist could not conclude either that this Court is in error in dismissing the instant petition or that Livingston should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.").

Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and recommendation adopted by 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D. Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge again recommends that Michael Antonio Livingston's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed as time-barred under § 2244(d). Alternatively, Petitioner is not entitled to any relief in this Court because he has procedurally defaulted his claims pursuant to O'Sullivan v. Boerckel. Petitioner is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.