GRAY M. BORDEN, Magistrate Judge.
This case is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by state inmate Michael Gordy ("Gordy") on February 28, 2014. Doc. 1.
Title 28, United States Code, Section 2244(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides the statute of limitations for federal habeas petitions and states:
28 U.S.C. § 2244(d).
On January 11, 2008, a Russell County jury found Gordy guilty of attempted murder, in violation of Alabama Code §§ 13A-4-2 & 13A-6-2; two counts of first-degree robbery, in violation of Alabama Code § 13A-8-41; and second-degree assault, in violation of Alabama Code § 13A-6-21. Doc. 11-5 at 75-77. On February 20, 2008, the trial court sentenced Gordy as a habitual offender to life in prison for the attempted-murder conviction, life in prison for each robbery conviction, and 180 months in prison for the assault conviction. Doc. 11-5 at 80-87. The trial court ordered the sentences for the robbery and assault convictions to be served concurrently but consecutive to the sentence for attempted murder. Doc. 11-5 at 80-87.
Gordy appealed, and the Alabama Court of Criminal Appeals affirmed his convictions and sentence in a memorandum opinion issued on October 2, 2009. Doc. 11-9. Gordy did not apply for rehearing in the Alabama Court of Criminal Appeals. On October 21, 2009, the Alabama Court of Criminal Appeals entered a certificate of judgment in his case. Doc. 11-10. On November 4, 2009, Gordy, through counsel, filed a petition for writ of certiorari with the Alabama Supreme Court, Doc. 11-11, and on November 6, 2009, also through counsel, he filed a motion with the Alabama Court of Criminal Appeals to recall its certificate of judgment, Doc. 11-2. On November 9, 2009, the Alabama Court of Criminal Appeals denied Gordy's motion to recall the certificate of judgment. Doc. 11-13. On November 13, 2009, the Alabama Supreme Court ordered that Gordy's petition for writ of certiorari be stricken because he failed to apply for rehearing in the Alabama Court of Criminal Appeals. Doc. 11-14. On February 8, 2010, Gordy filed a pro se petition for writ of certiorari with the United States Supreme Court. Doc. 11-15. In March 2010, that petition was returned to Gordy by the Clerk of the United States Supreme Court as improperly filed. Doc. 11-16.
On October 29, 2010, Gordy filed a pro se petition for post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure challenging his convictions and sentence. See Doc. 11-17 at 18-66.
Because Gordy filed no application for rehearing in the Alabama Court of Criminal Appeals on direct review, he was precluded from seeking certiorari review in the Alabama Supreme Court and, as a further consequence, in the United States Supreme Court.
Title 28, United States Code, Section 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, Gordy filed a Rule 32 petition in the trial court on October 29, 2010. However, that filing had no tolling effect under § 2244(d)(2), because AEDPA's one-year limitation period expired eight days earlier, on October 21, 2010. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (noting that, where the state court application for post-conviction relief is filed after the one-year federal statute of limitations has expired, it does not toll the statute because no time remains to be tolled).
Even where statutory tolling is inapplicable, the limitation period in federal habeas proceedings 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 with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). As the Supreme Court has reaffirmed, 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." Holland v. Florida, 560 U.S. 631, 649 (2010); see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Equitable tolling is an extraordinary remedy applied only sparingly. Logreira v. Sec'y Dept. of Corr., 161 Fed. App'x 902, 903 (11th Cir. 2006). The burden of establishing entitlement to equitable tolling rests with the petitioner. Hollinger v. Sec'y Dep't of Corrs., 334 Fed. App'x 302, 306 (11th Cir. 2009).
Gordy argues he is entitled to equitable tolling because his attorney on direct appeal, Susan G. James, "abandoned" him after the Alabama Court of Criminal Appeals entered its memorandum opinion on October 2, 2009 affirming his convictions and sentence. Doc. 20 at 11. According to Gordy, he was unable to contact James regarding the "status of his direct appeal" until approximately eleven months after October 2, 2009, by which time, he seems to say, the statute of limitations had run on filing a timely Rule 32 petition in the trial court. Doc. 20 at 10-12. Gordy then suggests that his inability to file a timely Rule 32 petition in state court prevented him from filing a timely § 2254 habeas petition in federal court. Doc. 20 at 10-12. Gordy, who was at the time incarcerated, alleges none of his own efforts to contact James during that period, but he does submit an affidavit from his mother, who states she phoned James's office "several times" without receiving a return phone call around this time. Doc. 20 at 23. Further, Gordy's mother states that when she finally spoke to James, she "said she would call me with an appointment and she never did." Doc. 20 at 23. The dates on which these events occurred are not specified in the affidavit.
On this record, Gordy has not met his burden of establishing that some extraordinary circumstance prevented him from filing a timely § 2254 petition. Holland, 560 U.S. at 649. First, the Alabama Court of Criminal Appeals entered its certificate of judgment in the direct-appeal stage of the proceedings on October 21, 2009. Gordy states he was unable to contact James regarding the status of his direct appeal until approximately eleven months after the Alabama Court of Criminal Appeals' October 2, 2009 entry of its memorandum opinion affirming his convictions and sentence.
Moreover, Gordy is vague about what aspect of his appeal he was ignorant of when unable to contact James. He does not allege that he received untimely notice of the Alabama Court of Criminal Appeals' memorandum opinion affirming his convictions and sentence. Nor does he specify when he learned that James failed to file an application for rehearing of the appellate court's decision
Ultimately, Gordy fails to show that the alleged lack of communication from James actually prevented him from filing a timely Rule 32 petition or § 2254 petition. If, as Gordy contends, James walked away from her direct-appeal obligations to him after the Alabama Court of Criminal Appeals issued its memorandum opinion, the alleged abandonment did not block Gordy from pursuing collateral remedies before it was too late. Further, in his allegations about James, Gordy has not demonstrated the sort of serious attorney misconduct that rises to the level of an extraordinary circumstance justifying equitable tolling. See Holland, 560 U.S. at 649. Although an attorney's intentional deceit could warrant equitable tolling if a party shows reliance on the deceptive misrepresentations, mere attorney negligence does not warrant equitable relief. Spears v. Warden, 605 Fed. App'x 900, 903 (11th Cir. 2015). While Gordy alleges that his mother sought several times to contact James about the status of his appeal—to no avail—during the eleven months after his convictions and sentence were affirmed, nothing in the record indicates that James actively misled Gordy about the status of his case so that he was lulled into believing he need not act expeditiously to pursue his rights.
Finally, Gordy completely fails to show that he exercised the reasonable diligence required to merit equitable tolling. "Equitable tolling is not intended as a device to rescue those who inexcusably sleep upon their rights." United States v. Ramos-Maritinez, 638 F.3d 315, 323 (1st Cir. 2011). Gordy refers to his mother's unsuccessful attempts to contact James; however, he does not show he acted diligently in the face of circumstances that should have prompted him to pursue his rights. Although Gordy knew that the Alabama Court of Criminal Appeals had issued the memorandum opinion affirming his convictions and sentence and also knew that James had not applied for rehearing of that decision, there is no evidence (and no allegation by Gordy) that, during the relevant period while the statute of limitations ran, either Gordy or someone acting on his behalf ever sought to contact the Alabama Court of Criminal Appeals or the Alabama Supreme Court to determine the status of his case. Even assuming—and perhaps especially assuming—the veracity of Gordy's allegations about the lack of communication from James, a reasonable person in Gordy's position would have considered it prudent to inquire of the state courts about his case, particularly the status of the petition for writ of certiorari filed in the Alabama Supreme Court. Gordy's failure to do so constitutes a lack of reasonable diligence that forecloses his claim to entitlement to equitable tolling. Here, AEDPA's one-year limitation period for filing a § 2254 petition expired on October 21, 2010. Because Gordy did not file his § 2254 petition until February 28, 2014, his petition is untimely.
Demonstrated actual innocence may trump a time-bar in habeas proceedings and act as a gateway through which a petitioner can pass to have the claims in his § 2254 petition reviewed. See Rozzelle v. Secretary, Florida Dept. of Corrections, 672 F.3d 1000, 1011 (11th Cir. 2012); Wyzykowski v. Dept. of Corrections, 226 F.3d 1213, 1218 (11th Cir. 2000). In Schlup v. Delo, 513 U.S. 298 (1995), the United States Supreme Court held that habeas petitioners asserting actual innocence as a gateway to review of defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
"[T]he Schlup standard is demanding and permits review only in the `extraordinary' case." House v. Bell, 547 U.S. 518, 538 (2006). "In the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of [untimely] claims." Id. at 537. "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, 623-24 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)); Doe v. Menefee, 391 F.3d 147, 162 (2nd Cir. 2004) ("As Schlup makes clear, the issue before [a federal district] court is not legal innocence but factual innocence."). As the Supreme Court observed in Schlup:
513 U.S. at 324.
Gordy arguably asserts a claim of actual innocence through an affidavit submitted by Mary Crews, one of the victims of the home-invasion robbery for which Gordy was convicted. See Doc. 1 at 34-35, 40; Doc. 20 at 21-23; Doc. 29 at 11-13. In her affidavit, Crews asserts, with little elaboration: "I want to reiterate once again, Michael Gordy is not one of the individuals who robbed me. . . . For the past 7 years it has bothered me that Michael Gordy was accused and ultimately convicted of robbing me when I'm positive he is not one of the robbers . . . ." Doc. 1 at 40.
Crews's affidavit does not carry Gordy's heavy burden of demonstrating that it is more likely than not that no reasonable juror would have convicted him in light of the alleged new evidence. See Schlup, 513 U.S. at 327. In her trial testimony about the robbery, Crews testified that three armed men charged into the home where she lived with her grandmother and, after striking her in the head with the butt of a gun, took a safe containing 25 $2 bills and jewelry and other items, including her purse and cell phone. Two of the men had their faces covered, while a third, identified as Jerod Rogers, did not cover his face. Crews later picked Rogers from a lineup of 24 men as one the robbers. The State presented substantial evidence that Gordy was one of the two robbers with his face covered. In her affidavit, Crews does not explain how she is "positive" Gordy was not one of the robbers, or why she did not make such a claim until seven years after the robbery.
If Crews had testified at trial consistently with her affidavit, the jury would have weighed and assessed the credibility of such testimony against the substantial evidence of Gordy's guilt. The State's evidence included the testimony of Crews's grandmother, who was present during the robbery and testified consistently with Crews's trial testimony about the incident and the physical descriptions of the gunmen, and the testimony of Jerod Rogers, who cooperated with the State after his arrest and identified Gordy as a co-participant in the crime. The State's evidence also showed that when police apprehended Gordy, they found Crews's cell phone in his vehicle and nine $2 bills in his wallet. Crews's conclusory statement that Gordy was not one of the robbers is a thin reed upon which to hang a claim of actual innocence in light of Crews's trial testimony that two of the three gunmen had their faces covered and the quantum of evidence indicating Gordy's guilt.
Gordy has failed to convince the court that it is more likely than not that no reasonable juror would have found him guilty in light of the alleged new evidence. Schlup, 513 U.S. at 327. As Justice O'Connor emphasized in Schlup, the Supreme Court strove to "ensure that the actual innocence exception remains only a safety valve for the extraordinary case." Schlup, 513 U.S. at 333 (O'Connor, J., concurring) (internal quotation marks omitted). Gordy's is not such a case. Therefore, he is not entitled to the actual-innocence exception to the habeas statute's time-bar as articulated in Schlup.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for writ of habeas corpus under 28 U.S.C. § 2254 be DENIED and this case DISMISSED with prejudice, as the petition was filed after expiration of the one-year limitation period in 28 U.S.C. § 2244(d).
The Clerk of the Court is DIRECTED to file the Recommendation of the Magistrate Judge and to serve a copy on the petitioner. The petitioner is DIRECTED to file any objections to this Recommendation on or before March 10, 2016. Any objections filed must specifically identify the factual findings and legal conclusions in the Magistrate Judge's Recommendation to which the petitioner objects. Frivolous, conclusive or general objections will not be considered by the District Court.
Failure to file written objections to the proposed findings and recommendations in the Magistrate Judge's report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall "waive the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions" except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
