IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SHANTELL WILLIAMS, : 

Petitioner, : 

v. : CIVIL ACTION 09-440-KD-M 

CYNTHIA WHEELER-WHITE, : 

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 denied, that this

action be dismissed as time barred and that judgment be entered

in favor of Respondent Cynthia Wheeler-White and against

Petitioner Shantell Williams pursuant to 28 U.S.C. § 2244(d).

Petitioner was convicted of first degree robbery in the

Circuit Court of Clarke County on April 13, 2004 for which she

received a sentence of twenty-five years in the state

penitentiary (Doc. 6, pp. 2-3). On appeal, the Alabama Court of

Criminal Appeals affirmed the conviction (Doc. 6, p. 3). 

Williams admits that she did not seek certiorari in the Alabama

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Supreme Court (Doc. 6, p. 4, ¶ 10(e)). The certificate of final

judgment was entered on February 9, 2005 by the Alabama Court of

Criminal Appeals (Doc. 12, Exhibit 5).

Petitioner apparently did not file a Rule 32 petition, but

did file a Motion to Reconsider and Execute the Remainder of her

Sentence on February 24, 2005 in the Clarke County Circuit Court

(Doc. 4, p. 21). The Motion was denied on March 3, 2005 (id.). 

Petitioner filed a complaint with the United States District

Court for the Middle District of Alabama on June 9, 2009 (Doc. 4,

p. 29). That Court transferred the action to this Court (Doc. 4,

pp. 29-32). This Court had Petitioner complete a new habeas

petition on this Court’s form (Doc. 5) in which Williams raised

the following claims: (1) The indictment was improperly amended;

(2) the prosecutor failed to disclose certain information to the

Defendant; (3) ineffective assistance of counsel; and (4) the

trial judge failed to give complete jury instructions (Doc. 6). 

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. 12, pp. 304). 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

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period shall run from the 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). 

Petitioner’s conviction became final on February 9, 2005,

the day on which the Alabama Court of Criminal Appeals issued a

Certificate of Judgment on her criminal conviction (Doc. 12,

Exhibit 5). Because Williams did not seek certiorari in the

Alabama Supreme Court (see Doc. 6, p. 4, ¶ 10(e)), she was

foreclosed from seeking direct review of her conviction in the

U.S. Supreme Court. See Pugh v. Smith, 465 F.3d 1295, 1299-1300

(2006). As such, the ninety days that Williams could have taken

to seek that review are not added to her limitations period; the

AEDPA limitations clock began running on February 10, 2005. 

Petitioner’s habeas corpus petition was not filed until June

9, 2009, more than three years after the one-year grace period

had expired. The Court notes that AEDPA states that “[t]he time

during which a properly filed application for State postconviction 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). The Court does not consider Petitioner’s

Motion to Reconsider and Execute the Remainder of her Sentence

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(Doc. 4, p. 21) to meet this tolling of the statute; in any

event, that Motion was pending for only nine days, meaning that

this action was still filed more than three years beyond the

limitations period.

Petitioner has, essentially, asserted that this Court should

consider this action to have been equitably tolled (Doc. 14). 

The Eleventh Circuit Court of Appeals has held that § 2244

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) (quoting Sandvik v. U.S., 177 F.3d

1269, 1271 (11th Cir. 1999)). The Steed Court stated that

“[e]quitable tolling is an extraordinary remedy which is

typically applied sparingly. Mere attorney negligence does not

justify equitable tolling.” Steed, 219 F.3d at 1300 (internal

citations omitted). “The burden of establishing entitlement to

this extraordinary remedy plainly rests with the petitioner.”

Drew v. Department of Corrections, 297 F.3d 1278, 1286 (11th Cir.

2002), cert. denied sub nom. Drew v. Crosby, 537 U.S. 1237

(2003). Because of the difficult burden placed on petitioners,

the Eleventh Circuit has “rejected most claims for equitable

tolling.” Diaz v. Secretary for Department of Corrections, 362

F.3d 698, 701 (11th Cir. 2004).

Petitioner has replied to Respondent’s assertion that this

action should be dismissed by asserting that her appellate

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attorney did not correspond with her and she was unaware of the

actions he was taking on her behalf (Doc. 14). Because of this,

Williams did not know that the appeal of her conviction had been

affirmed (id.). Petitioner further asserts that her “attempt to

obtain [her] transcript or any information that would have been

favorable on [her] behalf was unduly delayed, denying [her] of

[her] access until the year of 2006" (id.).

The undersigned recommends that the Court find that

Petitioner is not entitled to equitable tolling of the statute of

limitations. Williams’s assertions concerning her attorney all

focus on what he did not do for her on the appeal of her

conviction; she does not explain why it took so long for her to

file this action. Even if the Court accepted Petitioner’s

assertion that she did not have the necessary information to

bring this action until 2006 (see Doc. 14), she still delayed

filing her action until June 2009 which is well beyond the oneyear grace period afforded habeas petitioners. Because

Petitioner has not shown this Court that she endured

extraordinary circumstances beyond her control, see Steed, 219

F.3d at 1300, this action is due to be dismissed as time-barred

pursuant to 28 U.S.C. § 2244(d). Williams’s two-and-one-halfyear delay was not unavoidable.

For the reasoning stated herein, it is recommended that this

habeas petition be denied, that this action be dismissed as timebarred, and that judgment be entered in favor of Respondent

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Cynthia Wheeler-White and against Petitioner Shantell Williams

pursuant to 28 U.S.C. § 2244(d).

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

2254 Cases, the undersigned recommends that a certificate of

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

U.S.C. foll. § 2254, 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

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that the issues presented were “adequate to deserve encouragement

to proceed further.”’”). Inasmuch as Williams did not timely

file this action and has failed to present extraordinary

circumstances beyond her control which prevented her from filing

this action in a timely manner, see Steed, 219 F.3d at 1300, a

reasonable jurist could not conclude either that this Court is in

error in dismissing the instant petition or that Williams should

be allowed to proceed further. See 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

It is recommendeds that Petitioner’s petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254, be denied. 

Furthermore, Petitioner is not entitled to a certificate of

appealability and, therefore, she 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

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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 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 2nd day of February, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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