IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DARRELL EUGENE CLANTON, : 

Petitioner, : 

v. : CIVIL ACTION 05-0343-WS-M

JERRY FERRELL, : 

Respondent. : 

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama

inmate which was referred for 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. This

action is now ready for consideration. The state record is

adequate to determine Petitioner's claims; no federal

evidentiary hearing is required. It is recommended that this

habeas petition be dismissed as time-barred and that judgment

be entered in favor of Respondent Jerry Ferrell and against

Petitioner Darrell Eugene Clanton pursuant to 28 U.S.C. §

2244(d).

Petitioner was convicted of first degree burglary in the

Circuit Court of Mobile County on January 8, 1993 for which he

received a sentence of twenty-five years in the state

penitentiary (Doc. 3, p. 2; Doc. 14, p. 1). Clanton did not

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1The Court notes that Defendant has never filed the exhibits

which support its assertions regarding Taylor’s Petition for

Reduction of Sentence (see Doc. 14, p. 4 n.1). 

2Respondent states that Petitioner did not file this complaint

until June 29, 2005 (Doc. 14, p. 2). While Taylor did not file a

petition which was in the form this Court requires until that date

(Doc. 3), Petitioner initiated this action on June 8, 2005 with the

filing of a habeas corpus petition, albeit an old one (Doc. 1).

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appeal the conviction (id. at p. 3). 

Petitioner filed a Petition for Reduction of Sentence

with the State on March 7, 1994 (see Doc. 14, p. 1). It was

denied on March 18, 1994 (see Doc. 14, p. 1).1 

Petitioner filed a complaint with this Court on June 8,

20052 raising the claim that he did not enter into his plea

agreement with full knowledge of the consequences as he was to

be sentenced under the habitual offender act (Doc. 3, p. 7). 

Respondent has answered the petition, arguing that it

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

statute of limitations period (Doc. 14, pp. 5-7). 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. § 2244. The specific provision

states as follows: 

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

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latest of the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review.

28 U.S.C. § 2244(d)(1)(A). 

The AEDPA became effective on April 24, 1996. Goodman v.

United States, 151 F.3d 1335, 1336 (11th Cir. 1998). The

Eleventh Circuit Court of Appeals held that the one-year

limitations period would begin to run on that date, April 24,

1996, for potential habeas petitioners whose convictions had

already become final by way of direct review. Goodman, 151

F.3d at 1337; Wilcox v. Florida Dept. of Corrections, 158 F.3d

1209, 1211 (11th Cir. 1998). In other words, the Eleventh

Circuit Court of Appeals established a “grace period” through

April 23, 1997 so that federal and state criminal defendants

would not lose the opportunity to seek federal habeas review. 

Petitioner’s conviction became final on February 19,

1993, the day on which he could last file an appeal of his

conviction and sentence with the Alabama Court of Criminal

Appeals. As such, Clanton’s conviction became final prior to

the effective date of the AEDPA. Ala.R.App.P. Rules 3(a)(2),

4(a)(1). 

Petitioner’s habeas corpus petition was not filed in this

Court until June 8, 2005, more than eight years after the

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3The Court also notes that Respondent has asserted that

Petitioner’s claim is procedurally defaulted as he has never brought

this claim in the State Courts (Doc. 14, p. 3). The Court finds

merit in Respondent’s assertion under the United States Supreme Court

decisions, Harris v. Reed, 489 U.S. 255 (1989) and Teague v. Lane,

489 U.S. 288 (1989). The Court further finds that Clanton has failed

to demonstrate cause and prejudice for his failure to raise these

claims in the State Courts in a timely manner under Wainwright v.

Sykes, 433 U.S. 72 (1977) and has failed to assert a fundamental

miscarriage of justice claim under Engle v. Isaac, 456 U.S. 107, 135

(1982) and Murray v. Carrier, 477 U.S. 478, 496 (1986). The Court

finds Clanton’s claim to be procedurally defaulted.

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grace period had expired. Petitioner has apparently only

filed a Petition for Reduction of Sentence in the State Courts

in the intervening period of time between his conviction and

the filing of this habeas petition; as noted earlier, the

petition for sentence reduction was filed—and denied—before

the grace period for the statute of limitations ran so it has

no impact on the running of the clock. 

Clearly, Petitioner’s habeas corpus petition was filed

well beyond the one-year grace period and filed in violation

of 28 U.S.C. § 2244(d). Clanton’s proffered reasoning for the

delay is that the time limit for an appeal does not begin to

run until the defendant is notified of the right to appeal;

Petitioner further claims that he was never notified of his

right to appeal (Doc. 16). The Court finds that Petitioner

has provided no cause for ignoring the dictates of the AntiTerrorism and Effective Death Penalty Act of 1996: this

action is time-barred.3

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For the reasons stated herein, it is recommended that

this habeas petition be dismissed as time-barred and that

judgment be entered in favor of Respondent Jerry Ferrell and

against Petitioner Darrell Eugene Clanton pursuant to 28

U.S.C. § 2244(d).

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:

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

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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 7th day of December, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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