The recommendation explains why the filing date is June 23, 2006, as opposed to July 19, 2006. 1

The other factors for determining the statute of limitations are not applicable in this case. See 2

§ 2244(d)(1). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

PERRY LANE DAVIS, )

)

Petitioner, )

)

v. ) CASE NO. 2:06-CV-640-WKW

)

J.C. GILES, et al., )

)

Respondents. )

ORDER

On August 11, 2008, the Magistrate Judge filed a recommendation (Doc. # 23) to

dismiss Petitioner Perry Lane Davis’s (“Davis”) 28 U.S.C. § 2254 petition for habeas corpus

relief. Davis filed objections to the recommendation. (Doc. # 28.) The court reviews de

novo the portions of the recommendation to which those objections apply. 28 U.S.C.

§ 636(b)(1)(C). 

On June 23, 2006, Davis filed a § 2254 petition for habeas corpus relief. Section 1

2254 habeas petitions must be filed within one year from “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for seeking such

review,” 28 U.S.C. § 2244(d)(1)(A), excepting the time during which a “properly filed”

petition for a state post-conviction remedy is pending, § 2244(d)(2). The Magistrate Judge 2

recommends denying the petition because it violates the one-year limitations period that

Case 2:06-cv-00640-WKW-WC Document 29 Filed 10/07/08 Page 1 of 4
 May 10, 2006 is the date Davis gives for the date he was notified of the state-court dismissal, 3

in his response (Doc. # 21) to the court’s order to show cause why his petition should not be dismissed as

barred by the statute of limitations (Doc. #18).

2

expired on December 16, 2005 (Doc. # 23, at 13), and because the limitations period has not

been tolled by statute or as a matter of equity. (Doc. # 23, at 9, 12.) Davis objects with one

challenge to the recommendation – that the period between December 12, 2005, the date the

state court dismissed Davis’s second post-conviction petition (Doc. # 28 ¶ 2), and the date

Davis was notified of that dismissal five and one-half months later (Doc. # 28 ¶ 3), should

be equitably tolled. (See Doc. # 28 ¶ 3 (“That the five and one half 5[1/2] months petitioner

was notified after the dismissal should be tolled, due [too] extraordinary circumstances

beyond the petitioner control and unavoidable with the exercise or [sic] diligence.”)). Even

if, however, the court were to grant Davis’s request to equitably toll the limitations period

from December 12, 2005, to May 10, 2006, the date Davis says he was notified, the one-year 3

statute of limitations still would bar his § 2254 petition. 

Davis appears not to object to the recommendation’s calculation of the limitations

period’s expiration date or the intervening tolling periods. The limitations period began on

December 23, 2003, the date the Alabama Court of Criminal Appeals certified final

judgment. (Doc. # 23, at 12.) Davis filed his first state post-conviction petition 113 days into

the limitations period, on April 15, 2004, which tolled the limitations period until the state

court denied relief on April 8, 2005. (Doc. # 23, at 12.) Davis filed another post-conviction

petition on November 9, 2005 (Doc. # 23, at 2), which was dismissed on December 12, 2005

Case 2:06-cv-00640-WKW-WC Document 29 Filed 10/07/08 Page 2 of 4
 Davis requests tolling “due too [sic] extraordinary circumstances beyond [his] control and 4

unavoidable with the exercise or [sic] diligence.” (Doc. # 28 ¶ 3.) Though Davis never used the word

“equitable,” he referenced the relevant factors for determining whether a court should grant equitable

tolling. See, e.g., Drew v. Dep’t of Corr., 297 F.3d 1278, 1286-87 (11th Cir. 2002) (“In order to be

entitled to the benefit of equitable tolling, a petitioner must act with diligence, and the untimeliness of the

filing must be the result of circumstances beyond his control.”). 

3

(Doc. # 21 Ex. A). This second petition did not toll the statute of limitations period for filing

a § 2254 petition by statute; for a state-court petition to toll the statute of limitations, it must

have been “properly filed,” § 2254(d)(2), and under state law, Davis’s second state postconviction petition was untimely and thus, not “properly filed.” (Doc. # 23, at 8.) Because

the second state post-conviction petition did not toll the limitations period, it continued to run

during the period that the petition was pending, and expired on December 16, 2005, four days

after the state court dismissed the petition. (Doc. # 23, at 13.) 

Davis’s objection, however, is to the recommendation that the limitations period

should not be equitably tolled. He argues that even if his second state post-conviction

petition was not properly filed and failed to toll the limitations period, he had four days

between the dismissal of that petition and the limitations period’s expiration, and because he

did not receive notice of the dismissal until five and one-half months later, the time period

between the dismissal and the time he received notice should be tolled, ostensibly for

equitable reasons. (See Doc. # 28 ¶¶ 2-3.) The problem with Davis’s argument is that he 4

did not file his § 2254 petition until June 23, 2006 which was after the limitations period had

expired regardless of whether the court tolls the five and one-half months period. On

December 12, 2005, Davis had four days left before the deadline for filing his § 2254 petition

Case 2:06-cv-00640-WKW-WC Document 29 Filed 10/07/08 Page 3 of 4
4

expired. If the court were to toll the period between December 12, 2005, and May 10, 2006

on the theory that the state court’s alleged failure to notify Davis of the dismissal warranted

equitable tolling – a decision the court need not reach – the limitations period would have

started to run again on May 10, 2006, when Davis allegedly received notice of the state-court

dismissal. At that point, Davis had four days – the time remaining on the limitations period

– to file a § 2254 petition. Davis did not file his § 2254 petition until June 23, 2006, and has

offered no reason for the court to toll the period between May 14, 2006, and June 23, 2006.

Thus, upon an independent and de novo determination of that portion of the

recommendation to which objection is made, it is ORDERED as follows:

1. Davis’s objections (Doc. # 28) are OVERRULED. 

2. The Recommendation of the Magistrate Judge (Doc. # 23) is ADOPTED.

3. Davis’s habeas corpus petition filed pursuant to 28 U.S.C. § 2254 is DENIED

for failing to file within the one-year limitations period set forth in 28 U.S.C.

§ 2254(d)(1). 

4. The case is DISMISSED with prejudice.

Done this 7th day of October, 2008.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00640-WKW-WC Document 29 Filed 10/07/08 Page 4 of 4