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Subsection (d) was added by the Anti-Terrorism and Effective Death Penalty Act of 1996

(the “AEDPA”). This Act became effective on April 24, 1996.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 _______________________________

JOHN STEPHEN COLEMAN, #223 809 *

Petitioner, *

v. * 2:06-CV-669-MEF

GWENDOLYN MOSLEY, WARDEN, et al., *

Respondents. *

 _______________________________

ORDER

This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief

filed by Petitioner John Coleman on July 24, 2006. In this petition, Petitioner challenges the

conviction for manslaughter entered against him by the Circuit Court for Bullock County,

Alabama, on May 23, 2002. On June 25, 2002, the trial court sentenced Petitioner to 20

years’ imprisonment. The Alabama Court of Criminal Appeals affirmed Petitioner’s

conviction on February 28, 2003. The Alabama Supreme Court of Alabama denied certiorari

review and the Court of Criminal Appeals issued a certificate of judgment on August 15,

2003. By operation of law, Petitioner’s convictions became final on November 13, 2003.

Pursuant to the orders of this court, Respondents filed an answer in which they argue

that the instant habeas petition is barred by the one-year limitation period applicable to 28

U.S.C. § 2254 petitions. See 28 U.S.C. § 2244(d)(1).1

 Respondents contend that because

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Petitioner’s conviction became final in 2003- after the effective date of the statute of

limitations -- he must have filed his § 2254 petition within a year of this conviction becoming

final, exclusive of the time that any properly filed state post-conviction petition was pending

in the state courts. Respondents concede that Petitioner filed a state post-conviction petition

on August 5, 2004. They maintain, however, that even allowing a tolling of the limitation

period during the pendency of this Rule 32 petition, the limitation period expired prior to

Petitioner filing the present federal habeas petition. (Doc. No. 7, pgs. 3-5.); see also Webster

v. Moore, 199 F.3d 1256, 1259 (11th Cir.); Tinker v. Moore, 255 F.3d 1331, 1333- 1335. n.4

(11th Cir. 2001). Upon review of the pleadings filed in this case and applicable case law, it

appears that Petitioner’s § 2254 petition is precluded from review by this court as it was filed

outside the pertinent period of limitation. 

28 U.S.C. § 2244(d)(1)(A) directs that the limitation period for filing a 28 U.S.C. §

2254 petition begins to run on the date when the time for seeking direct review of the

challenged judgment expires. Petitioner was convicted of manslaughter in the Circuit Court

for Bullock County, Alabama, on May 23, 2002. Petitioner filed a direct appeal. The

Alabama Court of Criminal Appeals affirmed Petitioner’s conviction on February 28, 2003.

The Alabama Supreme Court denied Petitioner’s petition for writ of certiorari and the

Alabama Court of Criminal Appeals issued a certificate of judgment on August 15, 2003

(Doc. No. 7, Exh. 1.) By operation of law, Petitioner’s 2002 conviction for manslaughter

became final on November 13, 2003 -- ninety days after the Alabama Court of Criminal

Appeals entered its certificate of judgment -- as this is the date on which the time expired for

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Petitioner to file a petition for writ of certiorari with the United States Supreme Court.

Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000) (“A judgment does not become ‘final by the

conclusion of direct review or by the expiration of the time for seeking such review,’ see 28

U.S.C. § 2244(d)(1)(A), until the Supreme Court has had an opportunity to review the case

or the time for seeking review has expired.”); see also Rule 13.1, Rules of the United States

Supreme Court (a petition for writ of certiorari may only be filed to review a judgment or

order entered by a state court of last resort and must be filed within 90 days of the action

undertaken by such state court). Thus, Petitioner's manslaughter conviction became final

on November 13, 2003 and the one-year limitation period contained in section 2244(d)(1)(A)

began to run on this date.

 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.” The court finds that the limitation period ran for 266 days or eight months and 23

days after Petitioner’s conviction became final until Petitioner filed a Rule 32 petition in the

trial court on August 5, 2004. On June 10, 2005 the Alabama Court of Criminal Appeals

affirmed the lower court’s judgment denying Petitioner’s post-conviction petition in its

entirety. The Alabama Court of Criminal Appeals issued a certificate of judgment on

November 14, 2005. (Doc. No. 7, Exhs. 1, 2.) Thus, as of the aforementioned date, Petitioner

had 99 days of the applicable limitation period remaining within which to file a federal

habeas petition. The court, therefore, concludes that the time allowed Petitioner for the filing

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of a federal habeas petition expired on February 21, 2006. Petitioner filed his federal habeas

application on July 24, 2006 - 153 days or five months and 3 days after the limitation period

had expired.

Under the circumstances of this case as outlined in this order, the one-year period of

limitation contained in 28 U.S.C. § 2244(d)(1) expired prior to Petitioner filing the instant

§ 2254 petition. In light of the foregoing, it is 

ORDERED that on or before September 5, 2006 Petitioner shall show cause why his

federal habeas petition should not be denied as it was not filed within the one-year limitation

period established by 28 U.S.C. § 2244(d)(1). 

DONE, this 23rd day of August, 2006.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

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