IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

FREDERICK H. LANGE, III, : 

Petitioner, : 

v. : CIVIL ACTION 10-0093-KD-M 

WARDEN HETZEL, : 

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 Warden

Hetzel and against Petitioner Frederick H. Lange, III pursuant to

28 U.S.C. § 2244(d).

Petitioner was convicted of murder in the Baldwin County

Circuit Court on October 18, 2002 for which he received a life

sentence, without the possibility of parole, in the state

penitentiary (see Docs. 1, 18). On June 18, 2004, the Alabama

Court of Criminal Appeals affirmed the conviction (Doc. 18,

Exhibit C; see Doc. 18, p. 3). Lange filed petition for

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certiorari which was denied by the Alabama Supreme Court (Doc.

18, Exhibit E); the certificate of final judgment was entered on

September 20, 2004 (Doc. 18, Exhibit F).

Petitioner filed a Rule 32 petition on January 11, 2006 in

the Baldwin County Circuit Court which was denied on July 7, 2006

(Doc. 18, Exhibit G, pp. 2-10, 22); Lange did not appeal the

denial (see Doc. 18, p. 3). Petitioner filed a second Rule 32

petition on December 12, 2006 which was denied on July 31, 2007

(Doc. 18, Exhibit G, pp. 30-46, 53). 

Petitioner filed a complaint with this Court on February 24,

2010 raising the single claim that he was incompetent to stand

trial (Doc. 1). Respondent has answered the petition, arguing

that it should be dismissed as it was not filed within the oneyear statute of limitations period (Doc. 18, 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 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). 

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The AEDPA became effective on April 24, 1996. 

Petitioner’s conviction became final on September 20, 2004,

the day on which the certificate of judgment was entered (Doc.

18, Exhibit F). Lange then had ninety days in which to seek

direct review of his conviction in the U.S. Supreme Court, so

those ninety days do not count against him--whether he actually

sought review or not. See Coates v. Byrd, 211 F.3d 1225,

1226-1227 (11th Cir. 2000) cert. denied, 531 U.S. 1166 (2001). 

When ninety days are added to September 20, 2004, the result is

December 19, a Sunday, so the statute of limitations clock began

to run on December 20, 2004 and Petitioner’s last date to file a

petition in this court was December 20, 2005. 

Petitioner’s habeas corpus petition was not filed in this

Court until February 24, 2010, more than four years after the

grace period had expired. Petitioner had filed a Rule 32

petition in state court on January 11, 2006, more than a month

after the grace period had expired. The Eleventh Circuit Court

of Appeals has held that “[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 (11th Cir. 2000). 

Petitioner’s Rule 32 petition was filed too late to toll the

statute.

Lange has not disputed the tardiness of his petition, but

asserts that he has only recently discovered that he was

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Respondent has not made the cited material available to the

Court to support this statement.

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incompetent at trial (Docs. 1, 20). More specifically,

Petitioner has asserted that he was diagnosed to be bipolar at

the time that he stood trial, though he was really suffering from

schizophrenia and has only recently become aware of this through

medications (Doc. 1, p. 6). Respondent has asserted that “[o]n

August 12, 2002, after being evaluated at Taylor Hardin Secure

Medical Facility, Lange was determined competent to stand trial. 

(Exhibit B, C. 82-93)” (Doc. 18, p. 2).1

Petitioner was obviously aware that he stood trial and was

convicted and sentenced for murder. Lange, as a pro se

petitioner, challenged his conviction in two separate Rule 32

petitions. There is nothing in the evidence to suggest that

Petitioner was not competent to stand trial or that his mental

defect should excuse his extreme lateness in bringing this

action.

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). The Court finds that Petitioner has provided

no cause for ignoring the dictates of the Anti-Terrorism and

Effective Death Penalty Act of 1996: this action is time-barred.

For the reasoning stated herein, it is recommended that this

habeas petition be dismissed as time-barred and that judgment be

entered in favor of Respondent Warden Hetzel and against

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Petitioner Frederick H. Lange, III 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 Lange is more than four

years late in bringing this action to this Court, a reasonable

jurist could not conclude either that this Court is in error in

dismissing the instant petition or that Lange should be allowed

to proceed further, Slack, supra, 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 petition

for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be

denied. Petitioner is not entitled to a certificate of

appealability and, 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

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(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 4th day of June, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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