IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HAROLD FRANKLIN WALTERS, : 

Petitioner, : 

CIVIL ACTION 10-0131-CG-M 

v. : 

CRIMINAL ACTION 05-0145-CG-M 

UNITED STATES OF AMERICA, : 

Respondent. : 

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate,

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 44)

and Respondent’s Motion to Dismiss (Doc. 46). This action was

referred to the undersigned Magistrate Judge for report and

recommendation pursuant to 28 U.S.C. § 636(b) and Rule 8(b) of

the Rules Governing Section 2255 Cases. It is now ready for

consideration. The record is adequate to dispose of this matter;

no evidentiary hearing is required. It is recommended that

Respondent’s Motion to Dismiss (Doc. 46) be granted, that

Petitioner’s Motion to Vacate (Doc. 44) be denied, that this

action be dismissed, and that judgment be entered in favor of

Respondent, the United States of America, and against Petitioner

Harold Franklin Walters.

Petitioner was indicted on April 28, 2005 for possession of

two computers containing child pornography that had been mailed,

shipped, and transported in interstate or foreign commerce in

violation of 18 U.S.C. 2252A(a)(5)(B) (Doc. 1). At trial,

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Walters was found guilty as charged in the indictment (see Doc.

26). Judge Granade sentenced Petitioner to ninety-seven months

on the conviction as well as a lifetime of supervised release

following his departure from prison, and an assessment of one

hundred dollars (Doc. 36). Represented by new counsel, Walters

appealed his conviction (Docs. 33, 40) which was affirmed by the

Eleventh Circuit Court of Appeals on June 29, 2006 (Doc. 42). 

Petitioner filed his Motion to Vacate, Set Aside, or Correct

Sentence under 28 U.S.C. § 2255 on March 15, 2010 in which he

raised the following claims: (1) There was no taped confession;

(2) a government witness gave false testimony; and (3) his

attorneys rendered ineffective assistance (Doc. 44). Respondent

has filed a Motion to Dismiss this action (Doc. 46) to which

Petitioner has replied (Doc. 48).

Before taking up Walters’ claims, the Court notes that

Respondent has answered the Petitioner, arguing that the petition

should be dismissed as it was not filed within the one-year

statute of limitations period (Doc. 46, pp. 2-4). Respondent

refers to provisions of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (hereinafter AEDPA) which amended, in

pertinent part, 28 U.S.C. § 2255. The specific provisions state

as follows: 

A prisoner in custody under sentence of

a court established by Act of Congress

claiming the right to be released upon the

ground that the sentence was imposed in

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June 29, 2006, the date Walters’ appeal was denied, plus ninety

days equals September 27, 2006.

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violation of the Constitution or laws of the

United States, or that the court was without

jurisdiction to impose such sentence, or that

the sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which

imposed the sentence to vacate, set aside or

correct the sentence.

***

A 1-year period of limitation shall apply to

a motion under this section. The limitation

period shall run from the latest of--

(1) the date on which the judgment of

conviction becomes final;

(2) the date on which the impediment to

making a motion created by governmental

action in violation of the Constitution

or laws of the United States is removed,

if the movant was prevented from making

a motion by such governmental action;

(3) the date on which the right asserted

was initially recognized by the Supreme

Court, if that right has been newly

recognized by the Supreme Court and made

retroactively applicable to cases on

collateral review; or

(4) the date on which the facts

supporting the claim or claims presented

could have been discovered through the

exercise of due diligence.

28 U.S.C. § 2255(f). 

Walter’s conviction became final on September 27, 2006, when

Petitioner’s opportunity to seek certiorari in the U.S. Supreme

Court expired.1

 Clay v. United States, 537 U.S. 522, 527 (2003)

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(“Finality attaches when this Court affirms a conviction on the

merits on direct review or denies a petition for a writ of

certiorari, or when the time for filing a certiorari petition

expires”). This means that Walters had until September 27, 2007

to file his Motion to Vacate. However, Petitioner’s Motion was

filed on March 15, 2010 (Doc. 44), more than twenty-nine months

beyond the one-year limitations period. 

The Court notes that, under Sandvik v. United States, 177

F.3d 1269, 1271 (11th Cir. 1999), cert. denied, 531 U.S. 971

(2000), “[e]quitable tolling is appropriate when a movant

untimely files because of extraordinary circumstances that are

both beyond his control and unavoidable even with diligence.” 

Though given the opportunity to do so, Petitioner has not

demonstrated any extraordinary circumstances (Doc. 48). The

Court finds that Petitioner has not demonstrated any basis for

finding that he has equitably tolled the statute. 

Walters has raised three claims in this petition. However,

the Court has found that Petitioner has filed his petition more

than two years beyond the one-year statute of limitations period. 

Therefore, it is recommended that Respondent’s Motion to Dismiss

be granted (Doc. 46), that Petitioner’s Motion to Vacate be

denied (Doc. 44), that this action be dismissed, and that

judgment be entered in favor of Respondent, the United States of

America, and against Petitioner Harold Franklin Walters.

Furthermore, pursuant to Rule 11(a) of the Rules Governing §

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2255 Cases, the undersigned recommends that a certificate of

appealability (hereinafter COA) in this case be denied. 28

U.S.C. foll. § 2255, 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 COA. 28 U.S.C. § 2253(c)(1). A COA

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 claims, “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 ‘sho[w] 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.”’”). Inasmuch as Walters filed this petition

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more than two years beyond the one-year statutory limitations

period, and the Court has found no equitable grounds for excusing

the tardiness, a reasonable jurist could not conclude either that

this Court is in error in dismissing the instant petition or that

Walters should be allowed to proceed further, 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.”). 

CONCLUSION

The Magistrate Judge recommends that Petitioner’s Motion to

Vacate, filed pursuant to 28 U.S.C. § 2255, be denied (Doc. 44). 

Petitioner is not entitled to a certificate of appealability;

therefore, he is not entitled to appeal in forma pauperis.

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

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A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

DONE this 27th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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