KATHERINE P. NELSON, Magistrate Judge.
Petitioner Darnell J. Perkins, a state prisoner presently in the custody of the respondent, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 (Doc. 1; see also Doc. 3
This matter is now before the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 8(b) of the Rule Governing Section 2254 Cases, and Local Rule 72.2(c)(4). And, for all the reasons explained below, it is
The uncontroverted record filed in support of the respondent's answer establishes the following timeline, applicable to disposition of the § 2254 petition.
A Mobile County jury found Perkins guilty of three counts of attempted murder and one count of first-degree burglary on June 7, 2006. On August 25, 2006, Perkins was sentenced, as a habitual felony offender, to four concurrent ninety-nine-year terms in prison. The Alabama Court of Criminal Appeals affirmed his sentence on February 16, 2007, and on June 15, 2007, the Alabama Supreme Court denied certiorari and issued a certificate of judgment. Thus, because he sought "certiorari relief in the state court of last resort,"
Perkins's first Rule 32 petition was filed November 21, 2007. It was summarily dismissed by the trial court, which dismissal the Court of Criminal Appeals affirmed, and on September 11, 2009, the Alabama Supreme Court denied certiorari and issued a certificate of judgment as to the this Rule 32 petition. Perkins filed a second Rule 32 petition on January 25, 2010, which was also summarily dismissed by the trial court. The Court of Criminal Appeals also affirmed this dismissal, and on January 7, 2011, the Alabama Supreme Court again denied certiorari and issued a certificate of judgment as to the this Rule 32 petition.
The habeas petition now before this Court was not filed until February 19, 2014, more than three years later.
As to that, what appears to be Perkins's first, habeas petition attacking his 2006 convictions and sentence in State court, § 2244(d)(1)(A) provides that "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" and "run from"— applicable here—"the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]" Id. Of course, "[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 subsection." Id., § 2254(d)(2).
The one-year period of limitations began to run, as stated above, on September 13, 2007. While his filing of Rule 32 petitions arguably tolled the running of the statute on two occasions, the Alabama Supreme Court denied certiorari and issued a certificate of judgment as to his second (the final) Rule 32 petition on January 7, 2011, more than three years before Perkins filed the instant § 2254 petition. Thus, it is clear that the limitations period, although tolled at times while Perkins pursued post-conviction review in the State courts, expired well before Perkins filed in this Court. Cf. Crumpton v. Patterson, No. CA 11-0086-WS-C, 2011 WL 4482878, at *6 (S.D. Ala. Sept. 9, 2011) ("Petitioner's one-year period of limitations under AEDPA began to run on March 18, 1999 and ran unabated for 218 days until Crumpton filed his first Rule 32 petition in the Circuit Court of Mobile County, Alabama on October 22, 1999. Crumpton's one-year limitations period was tolled until the certificate of final judgment of affirmance was issued by the Alabama Court of Criminal Appeals on June 6, 2000 thereby ending petitioner's first collateral attack on his conviction and sentence. Crumpton filed another Rule 32 petition in the Mobile County Circuit Court some 120 days later on October 4, 2000, and even assuming that subsequent petition again tolled the one-year limitations period, petitioner's one-year limitations period
Realizing perhaps the procedural defectiveness of his petition, Perkins has moved to dismiss it without prejudice. (See Doc. 11.) This request essentially invokes Rule 41(a)(2),
In Jessup, the court first noted four nonexclusive factors courts in that Circuit "should consider"
Also applicable to this case, the court in Jessup noted, "[a] motion to voluntarily dismiss under Rule 41(a)(2) should be denied when a plaintiff seeks to circumvent an expected adverse result, and that denial of voluntary dismissal is appropriate where summary judgment is imminent." Id. (citations and internal quotation marks omitted). In the context of habeas review, however, this point of law is tempered by a court's obligation to "ensure that the petitioner's ability to present claims of constitutional violations is not abridged merely because the petitioner has unwittingly fallen into a procedural trap created by the intricacies of habeas corpus law." Id. (quoting Clark v. Tansy, 13 F.3d 1407, 1409 (10th Cir. 1993)). As to this balance, the following analysis from Jessup—which, again, is equally applicable to the posture of Perkins's motion to voluntarily dismiss this action without prejudice—states it well:
Id. (internal record and other citations omitted and emphasis added); see also Fountain v. Forniss, No. 3:12-cv-02477-JHH-JEO, 2013 WL 360261, at *3 (N.D. Ala. Jan. 25, 2013) ("To the extent the petitioner seeks a dismiss[al] of this action without prejudice, the Court declines to do so. `The decision to grant or deny a Rule 41(a)(2) motion to dismiss an action without prejudice is entrusted to the sound discretion of the district court; thus, a plaintiff holds no right to such dismissal. What is more, in exercising its discretion, the court must "keep in mind the interests of the defendant, for Rule 41(a)(2) exists chiefly for protection of defendants."' In this instance, the respondents were required to answer the petitioner's claims and were required to locate, collect, and submit the relevant record. They have demonstrated the absence of any right to further review. To permit a dismissal without prejudice is not fair to the respondents or justified under the circumstances. Accordingly, this matter is due to be dismissed with prejudice." (quoting In re Bayshore Ford Trucks Sales, Inc., 471 F.3d 1233, 1259 (11th Cir. 2006) (in turn quoting Fisher v. P.R. Marine Mgmt., Inc., 940 F.2d 1502, 1503 (11th Cir. 1991)))).
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 claim, "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 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) ("Under the controlling standard, a petitioner must show 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." (citations omitted and punctuation modified)). Inasmuch as Perkins's petition is time-barred, and because he has not proven his entitlement to equitable tolling, which means this Court may not entertain the petition, a reasonable jurist could not conclude either that this Court is in error in denying it or that Perkins should be allowed to proceed further. See Slack, 529 U.S. at 484 ("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 petitioner, he may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WS-C, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same procedure), report & recommendation adopted sub nom. Griffin v. Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).
For all of the reasons discussed above, the Magistrate Judge
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. L.R. 72.4. 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.
