IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

KEITH STILL, :

Petitioner, :

vs. : CIVIL ACTION 09-00652-WS-B

WARDEN KENNETH JONES, :

Respondent. :

 REPORT AND RECOMMENDATION

Keith Still, a state inmate in the custody of Respondent, has

petitioned this Court for federal habeas corpus relief pursuant to

28 U.S.C. § 2254 (Doc. 1). The petition has been referred to the

undersigned Magistrate Judge for a report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and

Rule 8 of the Rules Governing Section 2254 Cases. The undersigned

has conducted a careful review of the record and finds that no

evidentiary hearing is required to resolve this case. Kelley v.

Sec’y for Dep’t of Corrs., 377 F.3d 1317 (11th Cir. 2004).

Following a complete review of this action, the undersigned

recommends that the petition be dismissed as barred by the statute

of limitations. 

FINDINGS OF FACT

Still was convicted in the Circuit Court of Baldwin County of

first-degree rape on September 16, 1994, and was sentenced to twenty

years imprisonment. (Docs. 1, 6). Petitioner appealed, and the

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Under the prison mailbox rule, the Court will assume that

Still actually delivered his petition to prison officials for

mailing and filed his habeas petition on September 28, 2009, the

date that it was signed and dated. Houston v. Lack, 487 U.S. 266,

271-272, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Washington v.

United States, 243 F.3d 1299 (llth Cir. 2001).

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Alabama Court of Criminal Appeals affirmed his conviction and

sentence on May 5, 1995. (Id.; Doc. 6, Ex. B). Still’s application

for rehearing was overruled on June 19, 1995, and the appellate

court, on August 25, 1995, issued its certificate of final judgment,

thereby concluding Still’s direct appeal. (Doc. 6, Ex. A). Although

Still asserts that he sought certiorari review by the Alabama

Supreme Court (Doc. 1 at 3), his assertion is not supported by the

record. On June 23, 2003, Still filed a Rule 32 petition attacking

his conviction, which was denied by the trial court on December 4,

2003. (Doc. 6, Ex. C). The Alabama Court of Criminal Appeals

dismissed Still’s appeal of the trial court’s denial of his Rule 32

petition, and issued its certificate of judgment on January 12,

2004. (Id.) 

Still filed the instant habeas petition seeking habeas relief

in this Court on September 28, 20091. (Doc. 1). Still alleges that

1)the trial court erroneously admitted testimony regarding his

collateral acts; 2) the trial court did not sufficiently cure

prejudicial and improper statements by a witness; 3) the trial court

was without jurisdiction to convict and sentence him; and 4) his

trial and appellate counsel were ineffective. (Id.)

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Respondent’s Answer (Doc. 6) to Still’s habeas petition

contains the defense that Petitioner is not entitled to habeas

corpus relief because his petition and claims are barred by the oneyear limitation period set forth in the Anti-Terrorism and Effective

Death Penalty Act, 28 U.S.C. Section 2244(d)(1).

CONCLUSIONS OF LAW

 Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April

24, 1996 enactment of The Anti-Terrorism and Effective Death Penalty

Act of 1996, § 101(Supp. II 1997) (“AEDPA”), a state prisoner

seeking a federal habeas corpus remedy must file his federal

petition within one year of the “conclusion of direct review or the

expiration of the time for seeking such review.” The Act provides

that: 

(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

judgement of a State court. The limitations 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

diligence.

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(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).

For prisoners convicted prior to the enactment of the AEDPA,

the statute of limitations is considered to run from the Act's

effective date of April 24, 1996. Drew v. Dep’t of Corrections, 297

F.3d 1278, 1283 (11th Cir. 2003); Guenther v. Holt, 173 F.3d 1328,

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

145 L. Ed. 2d 683 (2000). In other words, AEDPA’s one-year statute

of limitation expires on April 23, 1997, for habeas petitions filed

by those inmates convicted prior to AEDPA’s enactment date. 

In the case at bar, on direct appeal, the Alabama Court of

Criminal Appeals overruled Still’s application for rehearing on June

19, 1995, and entered a certificate of judgment on August 25, 1995.

Thus, Still’s conviction became final on that date. Because Still’s

conviction became final prior to enactment of the AEDPA, his

petition for habeas corpus relief should have been filed no later

than April 23, 1997. As noted, Still’s habeas corpus petition was

not filed in this Court until September 28, 2009, more than twelve

(12) years after the statutory deadline had expired. 

Section 2244(d)(2) of the AEDPA provides for the tolling of the

limitations period pending state court review of a properly filed

application for post-conviction relief. See In Re Hill, 437 F.3d

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1080, 1083 (11th Cir. 2006). Although Still filed a Rule 32

petition with the trial court, the petition was not pending during

the running of the limitation period as it was not filed until June

23, 2003, which is after the AEDPA limitation period had expired.

“[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

v. Moore, 199 F.3d 1256, 1259 (llth Cir. 2000); see also Tinker v.

Moore, 255 F.3d 1333, 1335. n.4 (llth Cir. 2001)(“[A] properly filed

petition in state court only tolls the time remaining within the

federal limitation period.”); Sibley v. Culliver, 377 F.3d 1196,

1204 (11th Cir. 2004)(“While a properly filed application for postconviction relief tolls the statute of limitations, it does not

reset or restart the statute of limitations once the limitations

period has expired.”)(citation omitted). Accordingly, Still’s Rule

32 petition, filed on June 23, 2003, did not toll the limitations

period because the limitations period had already expired by the

time the Rule 32 petition was filed. Thus, Still’s federal habeas

petition was untimely filed.

 Before recommending dismissal of Still’s petition for habeas

relief as untimely, the undersigned must determine whether

Petitioner has pled extraordinary circumstances which require a

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contrary conclusion. Thus, unless Still can demonstrate that the

tolling provisions of the AEDPA were triggered, his habeas petition

is untimely.

The Eleventh Circuit has stated that: 

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.” Sandvik v.

United States, 177 F.3d 1269[, 1271 (11th Cir. 1999)].

Equitable tolling is an extraordinary remedy which is

typically applied sparingly. See Irwin v. Dept. Of

Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112

L.Ed.2d 435 (1990).

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). See also

Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616,

618-19 (3rd Cir. 1998)(“equitable tolling is proper only when the

‘principles of equity would make [the] rigid application [of a

limitation period] unfair.’... [g]enerally, this will occur when

the petitioner has ‘in some extraordinary way...been prevented from

asserting his or her rights.’...[t]he petitioner must show that he

or she ‘exercised reasonable diligence in investigating and

bringing [the] claims.’... [m]ere excusable neglect is not

sufficient.”). Moreover, in the Eleventh Circuit, as a general

rule, “the ‘extraordinary circumstances’ standard applied in this

circuit focuses on the circumstances surrounding the late filing of

the federal habeas petition, rather than the circumstances

surrounding the underlying conviction.” Helton v. Secretary of

Dept. of Corrections, 259 F.3d 1310, 1314 (11th Cir.), cert. denied,

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The 11th Circuit has never held that 2244(d)’s limitation

period carries an actual innocence exception. Taylor v.

Secretary, Dep’t of Corrections, 230 Fed. Appx. 944, 945 (11th

Cir. 2007) (“[W]e have never held that there is an ‘actual

innocence’ exception to the AEDPA’s one-year statute of

limitations, and we decline to do so in the instant case because

[the petitioner] has failed to make a substantial showing of

7

535 U.S. 1080, 122 S.Ct. 1965 (2002); Drew v. Department of

Corrections, 297 F.3d 1278, 1286-87 (11th Cir. 2002).

In the Court’s Order entered following a review of

Respondent’s Answer, Still was directed to show cause, by March 11,

2010, why his petition should not be dismissed pursuant to 28

U.S.C. § 2244(d)(1) as time-barred. (Doc. 7). To date, Still has

failed to respond to the Court’s Order. However, in the space

provided on the Court’s habeas form to indicate why the statute of

limitations does not bar his conviction, Still merely repeats his

original claims but fails to provide any justification for the

untimely filing of his habeas petition in this Court. (Doc. 1 at

12). He has not alleged the existence of extraordinary

circumstances beyond his control that prevented him from filing a

timely petition, nor has he met the heavy burden of showing that he

exercised reasonable diligence in prosecuting his claims and in

bringing forth his habeas petition. Consequently, Still has failed

to present any evidence which demonstrates that he is entitled to

the equitable tolling of the AEDPA’s statutory limitations period.

Still instead states that he is actually innocent of the crime

for which he was convicted.2

 (Doc. 1 at 12). In order to

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actual innocence.”). But cf. U.S. v. Montano, 398 F.3d 1276,

1284 (11th Cir. 2000) (“Actual innocence is not itself a

substantive claim, but rather serves only to lift the procedural

bar caused by Appellant’s failure to timely file his § 2255

motion.”). However, several other circuits have recognized such

an exception. See, e.g., Souter v. Jones, 395 F.3d 577 (6th Cir.

2005); Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002). 

Assuming, without deciding, that a petitioner’s actual innocence

might support an equitable tolling of the limitation period,

Still, nevertheless, has failed to make a substantial showing of

actual innocence. 

8

demonstrate actual innocence in a post-conviction proceeding, a

petitioner must first “support his allegations of constitutional

error with new reliable evidence–-whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence--that was not presented at trial.” Schlup v.

Delo, 513 U.S. 298, 324 (1995). The evidence presented must

support the proposition that “a constitutional violation has

probably resulted in the conviction of one who is actually

innocent.” Id. at 327 (internal quotations omitted). “A petitioner

must show that it is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt.” Id.

at 327. In other words, Still must persuade this Court “that it is

more likely than not that no reasonable juror would have convicted

him in the light of the new evidence.” Id.

In the case sub judice, Still has offered no proof or evidence

to support his claim of innocence. Moreover, a review of the

record does not reveal any evidence which would tend to support his

contention that he is actually innocent. Indeed, Still makes only

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one fleeting reference to innocence in his petition, and although

he was permitted an opportunity to file a response to Respondent’s

Answer, he failed to do so. In sum, Petitioner has not provided

the Court with any credible new evidence, through scientific or

physical evidence or new eyewitness testimony, to support his claim

of actual innocence. Thus, he has failed to make a colorable

showing of actual innocence.

Where Respondent has asserted the defense of statute of

limitations and Petitioner has failed to meet his burden of

establishing the existence of extraordinary circumstances which

would justify the equitable tolling of AEDPA’s limitation period,

the undersigned must recommend that this case be dismissed as timebarred. Accordingly, the undersigned finds that because Still has

neither demonstrated actual innocence, nor established that

equitable tolling is warranted in this case, his federal habeas

petition should be dismissed as time-barred, and that judgment be

entered in favor of Respondent. 

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases,

“[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” Rule 11(a) of the Rules Governing 2254 Cases (December

1, 2009). A certificate of appealability may issue only where “the

applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). When a habeas

petition is dismissed on procedural grounds, such as in the instant

case, without reaching the merits of any underlying constitutional

claim, “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, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000); see

Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039,

154 L.Ed. 2d 931 (2003)(“Under the controlling standard, a

petitioner must ‘show that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have resolved

in a different manner or that the issues presented were ‘adequate

to deserve encouragement to proceed further.’”). 

In the instant action, Still’s claims are clearly time-barred,

and he has failed to present extraordinary circumstances beyond his

control which prevented him from filing this action in a timely

manner. Steed, 219 F.3d at 1300. He has also failed to make a

sufficient showing of ‘actual innocence’ of the charge for which he

was convicted. Schlup, 513 U.S. at 327. Under the facts of this

case, a reasonable jurist could not conclude either that this Court

is in error in dismissing the instant petition or that Petitioner

should be allowed to proceed further. Slack, 529 U.S. at 484, 120

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S. Ct. at 1604 (“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.”). Accordingly, the undersigned

recommends that the Court conclude that no reasonable jurist could

find it debatable whether the Petitioner’s petition should be

dismissed and as a result, he is not entitled to a certificate of

appealability.

CONCLUSION

For the reasons set forth above, it is the opinion of the

undersigned Magistrate Judge that Still’s petition for habeas

corpus relief be DENIED as time-barred and that Still is not

entitled to issuance of a Certificate of Appealability. It is so

recommended.

The attached sheet contains important information regarding

objections to this recommendation. 

DONE this the 7th day of April, 2010. 

 /S/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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The Court’s Local rules are being amended to reflect the

new computations of time as set out in the amendments to the

Federal Rules of Practice and Procedure, effective December 1,

2009.

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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 fourteen 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 days3 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. Opposing party’s response to the objection. Any opposing

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party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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.

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