IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL J. BROWN, :

AIS 186027,

:

Petitioner,

:

vs. CA 04-0818-BH-C

:

JERRY FARRELL,

:

Respondent.

REPORT AND RECOMMENDATION

Michael J. Brown, a state prisoner presently in the custody of the respondent, has

petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This

matter has been referred to the undersigned for the entry of a report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c). It is recommended that the

instant petition be dismissed as time barred under the Anti-Terrorism and Effective Death

Penalty Act’s one-year limitation provision contained in 28 U.S.C. § 2244(d).

FINDINGS OF FACT

1. Brown was convicted in the Circuit Court of Monroe County, Alabama on

November 6, 2000 of unlawfully distributing a controlled substance. (Doc. 8, Respondent’s

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1 All references to exhibits are to those attached to respondent’s Answer and filed on

February 25, 2005 (Doc. 8).

2

Exhibit A) 1 Petitioner entered a counseled guilty plea to the charge and was sentenced, as a

habitual felony offender, to fifteen years in a state penitentiary. (Id.) Petitioner did not file

a direct appeal of his conviction and sentence (Id.)

2. Brown filed a Rule 32 petition in the Circuit Court of Monroe County, Alabama

on February 18, 2004 (Doc. 8, Respondent’s Exhibit B), more than one year after the time for

filing an appeal had expired. The Rule 32 petition was denied on April 12, 2004 (id., DENIAL

OF RULE 32 PETITION), and the Alabama Court of Criminal Appeals affirmed that denial on

September 17, 2004 (Doc. 8, Respondent’s Exhibit A).

3. After a request for rehearing was denied by the Alabama Court of Criminal

Appeals on October 8, 2004, petitioner sought certiorari review of the denial of his Rule 32

petition in the Alabama Supreme Court. On December 10, 2004, the Alabama Supreme Court

denied the petition for a writ of certiorari and a certificate of judgment was issued. (Doc. 8,

Respondent’s Exhibit D)

4. On December 22, 2004, the day he signed his habeas petition, Brown is

deemed to have filed his section 2254 petition. (Doc. 1, Complaint at 11).

CONCLUSIONS OF LAW

1. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was

enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. §

2244 providing for a one-year period of limitations within which state prisoners must file their

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2 To the extent petitioner argues that this Court should calculate his one year limitations

period under subsection (C) of 28 U.S.C. § 2244(d)(1) (“[T]he date on which the constitutional right

asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on

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habeas corpus petitions pursuant to 28 U.S.C. § 2254. Wilcox v. Florida Dept. of Corrections,

158 F.3d 1209, 1210 (11th Cir. 1998) cert. denied sub nom. Wilcox v. Moore, 531 U.S. 840,

121 S.Ct. 103, 148 L.Ed.2d 62 (2000). 

(d)(1) 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.

The limitation period shall run from the latest of— 

 

(A) the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such review; 

 (B) the

date on which the impediment to filing an application created by State action in violation of the

Constitution or laws of the United States is removed, if the applicant was prevented from filing

by such State action; 

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review;

or 

 

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due diligence. 

 

(2) The 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.

28 U.S.C. § 2244(d).

2. Subsections (B), (C), and (D) of § 2244(d)(1) clearly do not apply to petitioner’s

case2 and therefore, the timeliness of Brown’s petition must be calculated under §

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collateral review.”) based upon the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296,

124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), this argument is due to be REJECTED. In Blakely, the

Supreme Court was faced with the task of applying the following rule which it first expressed in

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “‘Other than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” 542 U.S. at 

 , 124 S.Ct. at 2536. The High Court applied Apprendi according to its tenor and reversed the

guilty-plea sentence of a State of Washington defendant who was sentenced to prison for more than

three years beyond what the law provided for the crime to which he confessed on the basis of a

disputed finding that he had acted with “‘deliberate cruelty.’” Id. at , 124 S.Ct. at 2543. 

The Framers would not have thought it too much to demand that, before depriving a

man of three more years of his liberty, the State should suffer the modest inconvenience

of submitting its accusation to “the unanimous suffrage of twelve of his equals and

neighbors,” rather than a lone employee of the State.

Id. (internal citation omitted). 

In this case, Brown raises in his habeas corpus petition the issue that the State failed to properly

certify his prior felony conviction during his guilty plea proceeding and, giving an expansive reading of

his argument, he could be contending that whether he had a prior felony conviction was a jury issue.

However, it is clear to the undersigned that Blakely and Apprendi are inapplicable in this case since

those cases specifically exempt from jury consideration the “fact of a prior conviction[.]” Blakely,

supra, 542 U.S. at , 124 S.Ct. at 2536. In other words, the trial court in petitioner’s case simply

determined that he had a prior felony conviction, based upon his in-court admission of same (Doc. 8,

Respondent’s Exhibit B, JUDGMENT AND SENTENCING (“The defendant admitting in open court

that he had been, previous to the commission of the instant offense, convicted of one (1) felony, said

sentence being entered in accordance with the Habitual Offender Act.”)), and, therefore, the holdings in

Blakely and Apprendi cannot save petitioner’s case from analysis under the provisions of 28 U.S.C. §

2244(d)(1)(A). 

4

2244(d)(1)(A) based upon the date on which his conviction for unlawful distribution of a

controlled substance became final. “For prisoners whose convictions became final prior to

the effective date of the AEDPA, the one-year statute of limitations instituted by the AEDPA

began to run on its effective date, i.e., April 24, 1996.” Guenther v. Holt, 173 F.3d 1328,

1331 (11th Cir. 1999) (citations omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145

L.Ed.2d 683 (2000). This rule from Guenther is obviously not applicable in this case since

Brown’s conviction became final forty-two days after he was sentenced, that is, December 18,

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2000.

3. Section 2244(d)(1)(A) specifically provides that the one-year limitation period

will run from “the date on which the judgment became final by the conclusion of direct review

or the expiration of time for seeking such review[.]” Since he did not file a direct appeal,

Brown’s conviction became final on December 18, 2000 when the forty-two-day period in

which to orally or in writing file notice of appeal expired. Rule 4(a), Ala.R.App.P.;

Symanowski v. State, 606 So.2d 171 (Ala. Crim. App. 1992). Even though the Eleventh

Circuit has decided that state convictions are not final on federal habeas review until the

ninety-day period for seeking certiorari from the United States Supreme Court has expired,

Wade v. Battle, 379 F.3d 1254, 1255 (11th Cir. 2004), since Brown did not file an appeal and

could not seek review of his conviction in the Alabama Supreme Court, certiorari review by

the United States Supreme Court was not an option. 

4. In this case, Brown did not petition the Alabama Supreme Court for a writ of

certiorari within fourteen days of a denial by the Alabama Court of Criminal Appeals of his

application for rehearing, Ala.R.App.P. 40(c) (“An application for rehearing and the brief in

support of the application must be filed with the clerk of the appropriate appellate court within

14 days (2 weeks) of the date the decision being questioned is issued[.]”), for a very simple

reason, he did not file an appeal rendering an application for rehearing unavailable. Obviously,

a full review by Alabama’s intermediate appellate court is a prerequisite to certiorari review

by the Alabama Supreme Court, Ala.R.App.P. 40(d)(1) (“In all criminal cases except pretrial

appeals by the state, the filing of an application for rehearing in the Alabama Court of Criminal

Appeals is a prerequisite to certiorari review by the Alabama Supreme Court.”), and by not

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filing a direct appeal, Brown had clearly waived his opportunities to have the Supreme Court

of Alabama and the United States Supreme Court review any Constitutional violations that

could have been raised on direct appeal. Because petitioner did not follow state procedure and

perfect an appeal to Alabama’s court of last resort, it is clear under pertinent statutory law and

Supreme Court rules that he would be unable to petition the United States Supreme Court for

certiorari review. See Sup. Ct. R. 13.1. (“Unless otherwise provided by law, a petition for a

writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court

of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after

entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a

lower state court that is subject to discretionary review by the state court of last resort is

timely when it is filed with the Clerk within 90 days after entry of the order denying

discretionary review.”); 28 U.S.C. § 1257(a) (“Final judgments or decrees rendered by the

highest court of a State in which a decision could be had, may be reviewed by the Supreme

Court by writ of certiorari where . . . any title, right, privilege, or immunity is specially set up

or claimed under the Constitution or the treaties or statutes of, or any commission held or

authority exercised under, the United States.”) Accordingly, under the facts of this case, this

Court need not add the ninety days contemplated by Supreme Court Rule 13.1 since petitioner

did not directly appeal his case to Alabama’s court of last resort. See Tinker v. Moore, 255

F.3d 1331, 1332 & 1333 (11th Cir. 2001) (“Tinker was convicted on the robbery charge, and

on January 29, 1997, the Third District Court of Appeal affirmed his conviction. . . . The

mandate issued on February 14, 1997. . . . Under Florida law, a judgment against a criminal

defendant becomes final upon issuance of the mandate on his direct appeal. . . . Tinker’s

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mandate issued on February 14, 1997, and thus he had until February 13, 1998, to file his §

2254 petition, absent tolling of the limitations period.”), cert. denied, 534 U.S. 1144, 122

S.Ct. 1101, 151 L.Ed.2d 997 (2002). 

5. Before Brown’s conviction became final, AEDPA became effective, which

provided the one-year statute of limitations for filing an action under 28 U.S.C. § 2254.

Brown’s conviction was final on December 18, 2000; therefore, he had one year from that

date, until December 17, 2001, to file a section 2254 petition challenging his Alabama

conviction. Because petitioner filed his federal habeas corpus petition on December 22, 2004,

approximately thirty-six months after the one-year limitations period expired, the petition is

untimely filed pursuant to 28 U.S.C. § 2244(d)(1). Petitioner argues, however, that the

doctrine of equitable tolling applies in this action and therefore the merits of his petition

should be considered.

6. Brown is unable to take advantage of the tolling provision built into § 2244(d),

see Guenther, supra, 173 F.3d at 1331 (“‘The 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 in [subsection (d)].’”),

because his pertinent collateral attack on his conviction and sentence was not filed until

February 18, 2004, that is, after the one-year statute of limitations had already run under

2244(d)(1). Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) (“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.”), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148

L.Ed.2d 454 (2000). 

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7. In response to the Court’s Order of April 29, 2005, which extended an

opportunity for petitioner to show cause as to why his petition should not be barred, Brown

filed a response (Doc. 11) asserting that the statute of limitations contained in 28 U.S.C. §

2244(d)(1) should not bar his petition since equitable tolling principles apply. Specifically,

his argument is that, through no fault of his own, he failed to meet the filing deadlines because

he was incarcerated and was forced to rely on the assistance of inmate law clerks. (See Doc.

11, pp. 3-4) (“In the present case at bar the petitioner contendds (sic) that he is an inmate of

the Alabama Department of Corrections and that through no fault of his own has failed to

present his claims as presented in his habeas petition in a timely manner as petition was filed

while petitioner were (sic) depending on the assistance of inmate law clerks to assist him in

his legal proceedings.”))

8. Recent decisions of the Eleventh Circuit have clearly embraced the doctrine of

equitable tolling with regard to the one-year limitations period at issue: “Equitable tolling is

to be applied when ‘”extraordinary circumstances” have worked to prevent an otherwise

diligent petitioner from timely filing his petition.’ . . . Thus, the petitioner must show both

extraordinary circumstances and due diligence in order to be entitled to equitable tolling.”

Diaz v. Secretary for the Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004)

(citation omitted). “Section 2244 is a statute of limitations, not a jurisdictional bar. Therefore,

it permits equitable tolling ‘when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with diligence.’” Steed

v. Head, 219 F.3d 1298, 1300 (11th Cir.2000) (citation omitted). Thus, the one-year

limitations provision need not be equitably tolled unless there is evidence that “extraordinary

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circumstances” beyond petitioner’s control made it impossible for him to file his petition on

time. See Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-619 (3rd Cir.

1998) (“[E]quitable tolling is proper only when the ‘principles of equity would make [the] rigid

application [of a limitation period] unfair.’ . . . Generally, this will occur when the petitioner

has ‘in some extraordinary way . . . been prevented from asserting his or her rights.’ . . . The

petitioner must show that he or she ‘exercised reasonable diligence in investigating and

bringing [the] claims.’ . . . Mere excusable neglect is not sufficient.”); Calderon v. United

States District Court for the Central District of California, 128 F.3d 1283, 1288 (9th Cir.

1997) (“Equitable tolling will not be available in most cases, as extensions of time will only

be granted if ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to

file a petition on time.”), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998)

and cert. denied sub nom. Beeler v. Calderon, 523 U.S. 1061, 118 S.Ct. 1389, 140 L.Ed.2d

648 (1998). 

9. Petitioner has given one reason in support of his argument for the application

of the equitable tolling doctrine: that he was forced to use inmate law clerks to help with his

filings. The underlying facts in support of this general assertion have not been provided,

however, causing one to only be able to guess as to the reasons for the alleged delay in filing

his petition. Contrary to petitioner’s unsupported assertion, the record clearly reveals that he,

while represented by counsel, chose not to take a direct appeal. Once incarcerated, petitioner

waited until February 18, 2004 to file anything with regard to his conviction and sentence. He

has not shed any light on when he consulted with prison law clerks and was mislead or given

incorrect advice with regard to the limitations period for filing a federal habeas petition. In

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other words, he has not attempted to show that he diligently pursued his claims but was

prevented from timely filing due to the inadequacy of help that he received from other

unidentified inmates. 

 10. If Brown is saying that he was prevented from the timely filing of his petition

due to a lack of competent legal advice, this type of malfeasance does not constitute

extraordinary circumstances. 

Equitable tolling is an extraordinary remedy which is typically applied sparingly.

Mere attorney negligence does not justify equitable tolling. An attorney's

miscalculation of the limitations period or mistake is not a basis for equitable

tolling. Any miscalculation or misinterpretation by Steed's attorney in

interpreting the plain language of the statute does not constitute an extraordinary

circumstance sufficient to warrant equitable tolling. 

Steed, 219 F.3d at 1300 (internal citations omitted).

11. Brown has vaguely pled that he was incarcerated during the one year after his

sentence became final and did not have access to adequate legal representation. His response

fails to present, however, sufficient facts to support the argument of inadequate representation.

There is no information given as to the place or time of his incarceration. He does not discuss

or provide the specifics of how and when he discussed with inmate assistants the filing

requirements under section 2244(d)(1) or how he was disadvantaged because he did not receive

competent information. Accordingly, he has failed to prove any alleged connection between

an inadequate access to trained legal assistance and his untimely filing of the habeas complaint.

See Helton v. Secretary for the Department of Corrections, 259 F.3d 1310, 1313-1314 (11th

Cir. 2001) (“Thus, the record evidence is insufficient to support a connection between

Helton’s untimely filing and any alleged inadequacies in the prison library.”) cert. denied sub

nom. Helton v. Moore, 535 U.S. 1080, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002) .

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CONCLUSION

The doctrine of equitable tolling does not excuse the untimely filing of petitioner’s §

2254 petition. Because Brown’s petition is procedurally barred by the AEDPA’s one-year

statue of limitations, it is recommended that the present habeas corpus petition be dismissed

pursuant to 28 U.S.C. § 2244(d) as time-barred.

The attached sheet contains important information regarding objections 

to the report and recommendation of the Magistrate Judge.

DONE this the 23rd day of August, 2005.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this 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:

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 case 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.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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