TERRY F. MOORER, Magistrate Judge.
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Petitioner Stacy Harrison on September 6, 2012.
Petitioner was paroled on June 20, 2007. On March 21, 2009, he was arrested on a charge of unlawful possession of a firearm. Petitioner's parole officer issued a report of parole violation on March 30, 2009. A parole revocation hearing was held on August 6, 2009. At the parole revocation hearing, the hearing officer determined that sufficient evidence was presented to support a finding that Petitioner had violated his parole by possessing a firearm. The hearing officer recommended that Petitioner's parole be revoked. Based upon these findings, the Alabama Board of Pardons and Parole ["the Board"] revoked Petitioner's parole on September 21, 2009. Doc. No. 13, Exh. A.
On September 10, 2010, Petitioner filed a petition for writ of certiorari in the Circuit Court of Montgomery County, Alabama, challenging the revocation of his parole. That petition remained pending until September 9, 2011 when the Alabama Supreme Court denied Petitioner's petition for writ of certiorari. The Alabama Court of Criminal Appeals entered a certificate of judgment the same day. Doc. No. 13, Exhs. B-L.
Petitioner presents the following issues in the instant petition:
1. He was denied due process when his parole was revoked because he was not afforded the opportunity to be present at his revocation hearing;
2. He did not receive notice of the hearing prior to his parole being revoked;
3. The Board of Pardons and Parole used false information to revoke his parole;
4. The U.S. Constitution and § 15-22-32, Ala. Code 1975, require a preliminary revocation hearing and a final revocation hearing, which is the minimum due process described in Morrissey v. Brewer, 408 U.S. 471 (1972);
5. The Board of Pardons and Parole's Motion for Summary Judgment should not have been granted because Petitioner had filed interrogatories not answered prior to summary judgment being entered in favor of the Board. Doc. No. 1.
Pursuant to the orders of this court, Respondents filed an answer and supplemental answers. Doc. Nos. 13, 17, 19. Petitioner was afforded an opportunity to respond to Respondents' submissions including an opportunity to show cause why his petition should not be barred from review by this court for his failure to file his federal habeas petition within the one-year limitation period established by 28 U.S.C. § 2241(d)(1). See Doc. No. 14. Petitioner took advantage of the opportunity to respond. Doc. Nos. 15, 21. After due consideration and upon review of the petition, the pleadings, and the record, the court concludes that Petitioner's petition should be denied because it was not filed within the applicable limitation period. See 28 U.S.C. § 2244(d)(1).
The Anti-Terrorism and Effective Death Penalty Act of 1996 was signed into law on April 24, 1996 and amended the habeas corpus statute to include a one-year period of limitation on petitions filed under 28 U.S.C. § 2254. This limitation period is codified at 28 U.S.C. § 2244(d) and provides that:
On September 21, 2009, the Alabama Board of Pardons and Paroles issued notice of its decision revoking Petitioner's parole. At that time Petitioner should have known of the factual predicate of his claims. Thus, the limitation period must be measured from the date on which Petitioner's parole was revoked. See 28 U.S.C. § 2244(d)(1). Petitioner's one-year limitation period under § 2244(d)(1)(A) began to run on September 21, 2009.
Title 28 U.S.C. § 2244(d)(2) provides that "[t]he 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." As indicated above, Petitioner's one-year limitation period under § 2244(d)(1) began to run on September 21, 2009. When Petitioner sought review of his parole revocation by filing a petition for writ of certiorari in the Circuit Court of Montgomery County on February 10, 2010, the limitation period had run for 142 days.
The Supreme Court has determined that the one-year limitation period is subject to equitable tolling when a petitioner "shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999) (limitation period "may be equitably tolled" on grounds apart from those specified in the habeas statute "when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence."); see also Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002). The diligence required is "reasonable diligence," not "maximum feasible diligence," see Holland, 560 U.S. at 653, and the extraordinary circumstance prong requires a causal connection between the circumstance and the late filing. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). "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." Calderon v. United States District Court, 128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds, 163 F.3d 530 (9th Cir. 1998). Such tolling applies only in truly extraordinary circumstances. 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."); Jones v. United States, 304 F.3d 1035, 1039-1040 (11th Cir. 2002); Drew v. Department of Corrections, 297 F.3d 1278, 1286 (11th Cir. 2002). "The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner." Id.; see Helton v. Secretary for the Dept. of Corrections, 259 F.3d 1310, 1313-1314 (11th Cir. 2001).
The court granted Petitioner an opportunity to show cause why his federal habeas petition should not be denied as it was not filed within the one-year limitation period prescribed by 28 U.S.C. § 2244(d). See Doc. No. 14. In his response to this order, Petitioner states he had no knowledge that his parole had been revoked by the Board until February 2010 when he spoke to classification personnel with the Alabama Department of Corrections because the Board failed to serve him with notice of its action to revoke his parole dated September 21, 2009. Doc. No. 15. Petitioner maintains that he was in federal custody at the Cullman County Jail in Cullman, Alabama, at the time the Board issued the notice of parole revocation and was then subsequently transferred to the Jefferson County Jail on November 18, 2009. Id. On January 26, 2010, Petitioner was transferred to the Kilby Correctional Facility under the custody of the Alabama Department of Corrections.
Even if the court allows equitable tolling of the limitation period until Petitioner claims he received notice of the Board's action to revoke his parole, the limitation period expired prior to him filing the instant habeas petition. Petitioner claims he only learned that the Board revoked his parole at the "beginning" of February 2010. Doc. No. 15. The evidence reflects that on February 1, 2010, Petitioner signed an institutional classification document stating he was a revoked parolee serving a twenty year sentence and that his parole had been revoked for new offenses. See Doc. No. 13, Exh. A at 70, Doc. No. 15, Exh. C; Doc. No. 19, Exh. A; Doc. No. 21, Exh. E. Allowing Petitioner the benefit of equitable tolling, the limitation period began to run on this date. When Petitioner filed his petition for writ of certiorari with the Circuit Court for Montgomery County on February 10, 2010, nine days of the limitation period had run. Petitioner's certiorari petition remained pending in the state courts until September 9, 2011, when the Alabama Court of Criminal Appeals issued a certificate of judgment from the Alabama Supreme Court's denial of his request for certiorari review. Doc. No. 13, Exhs. B-L. As of that date, Petitioner had 356 days of the limitation period remaining, or until September 1, 2012, within which to file a timely federal habeas petition. Petitioner filed his habeas corpus petition with this court six (6) days later on September 6, 2012. He fails to set forth the existence of any extraordinary circumstance that prevented him from timely filing the present habeas petition following the conclusion of the state court proceedings on his petition for writ of certiorari.
Under these circumstances, the federal period of limitation expired prior to Petitioner's filing of this habeas petition on September 6, 2012. Even allowing equitable tolling until February 1, 2010, when Petitioner states he received notice that the Board had revoked his parole, he filed this federal habeas petition after the limitation period had expired.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The petition for habeas corpus relief filed by Stacy Harrison be DENIED as it was not filed within the period of limitation established by applicable federal law; and
2. This case be DISMISSED with prejudice.
It is further
ORDERED that
Failure to file a written objection to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.
