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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

 _______________________________

DUVAL JONES, #189 486 *

Petitioner, *

v. * 2:06-CV-720-WHA

 (WO)

JERRY FERRELL, 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, Duval Jones [“Jones”], on July 28, 2006. In this petition, Jones

challenges his conviction for second degree robbery entered against him by the Circuit Court

for Covington County, Alabama, on June 18, 2002. The trial court sentenced Jones, as a

habitual offender, to a term of 30 years imprisonment. Jones did not file a direct appeal. His

conviction, therefore, became final by operation of law on July 30, 2002.

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

Jones’ conviction became final in July 2002 -- after the effective date of the statute of

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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 Jones filed a Rule 32 petition with the trial

court on November 25, 2003. They argue, however, that the petition did not toll the oneyear period of limitation because it was filed after expiration of the limitation period and was,

therefore, not pending as required by the provisions of 28 U.S.C. § 2244(d)(2) for purposes

of tolling the requisite time period. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.

2000); 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

Jones’ § 2254 petition is precluded from review by this court as it was filed outside the

applicable 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. Jones entered a plea of guilty to second degree robbery in the

Circuit Court for Covington County, Alabama, on June 18, 2002 and was sentenced to 30

years imprisonment. Jones did not file a direct appeal of his conviction or sentence. Since

Jones failed to undertake the direct appeal process, he could not petition the United States

Supreme Court for review of his conviction. By operation of law, Jones’ conviction became

final on July 30, 2002- forty-two days after imposition of sentence as this is the date on

which his time to seek direct review expired. See Rule 4(b)(1), Alabama Rules of Appellate

Procedure. The one-year period of limitation contained in section 2244(d)(1)(A), therefore,

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Jones filed a Rule 32 petition in state court on November 25, 2003 - 3 months and 26 days

§ 2244(d)’s one-year period of limitation had expired. 

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began to run on this date and ran uninterrupted until the limitation period expired on July 30,

2003. (Doc. No. 10, Exh. A.) 

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.” Although Jones filed a Rule 32 petition, this petition was not pending during the

running of the limitation period as it was filed after expiration of this time period.2

 “[E]ven

‘properly filed’ state-court petitions must be ‘pending’ [during the one-year period of

limitation] in order to toll the limitations period. A state court petition . . . that is filed

following the expiration of the limitations period cannot toll that period because there is no

period remaining to be tolled.” Webster, 199 F.3d at 1259; see also Tinker, 255 F.3d at 1333,

1335. n.4 (11th Cir. 2001) (“[A] properly filed petition in state court only tolls the time

remaining within the federal limitation period.”). It is, therefore, clear that the state postconviction petition filed by Petitioner on November 25, 2003 had no affect on the running

of the limitation period applicable to the instant federal habeas petition. Webster, 199 F.3d

at 1259. (Doc. No. 10, Exh. B.) 

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 Jones filing the instant § 2254

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petition. In light of the foregoing, it is 

ORDERED that on or before October 23, 2006 Jones 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 3rd day of October, 2006.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE 

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