IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

REGINALD BURRELL, *

(AIS: #201704) *

 *

 Petitioner, *

*

vs. * CIVIL ACTION NO.13-00242-KD-B

*

CHERYL PRICE, *

*

 Respondent. *

Report and Recommendation

Reginald Burrell, 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), S.D. 

Ala. GenLR 72(a)(2)(R) 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 Corr., 377 F.3d 

1317 (11th Cir. 2004). 

Having carefully considered Burrell’s petition, 

Respondent’s answer, and Burrell’s response and amended 

response, the undersigned finds that Burrell’s petition is 

untimely, and that equitable tolling is not appropriate. 

Accordingly, it is recommended that Burrell’s habeas petition be 

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dismissed as time-barred, that judgment be entered in favor of 

Respondent and against Petitioner, Reginald Burrell, pursuant to 

28 U.S.C. § 2244(d), and that Burrell be denied the issuance of 

a certificate of appealability, as well as in forma pauperis

status in the event of an appeal. 

I. DISCUSSION

Burrell was indicted on January 21, 2000, on five counts of 

robbery in the first degree in Mobile County Circuit Court. 

(Doc. 11-1 at 3). On April 5, 2000, Burrell entered a blind 

plea of guilty to all five counts. (Doc. 10 at 3; Doc. 11-1 at 

4). On May 8, 2000, Burrell was sentenced to 30 years 

imprisonment on each count, all to run concurrently1. (Doc. 11-1 

at 4, 14, 22, 30, 38; Doc 11-2 at 53). Subsequent thereto, on 

June 8, 2000, Burrell filed a motion seeking to withdraw his 

																																																							 1 The May 8, 2000 court entry for cc-2000-250 reads as follows:

DEFENDANT BE AND IS HEREBY ADJUDGED GUILTY OF ROBBERY, 

FIRST DEGREE, FOR WHICH HE WAS INDICTED, AND IS NOW SENTENCED BY 

THE COURT TO THE STATE PENETENTIARY FOR THE TERM OF 30 YEARS. 

DEFENDANT IS TO BE GIVEN CREDIT FOR 8 Months and 5 days

[handwritten] TIME SPENT IN JAIL. 

SUSPENSION OF THE SENTENCE IS FURTHER CONDITIONED ON 

DEFENDANT PAYING $50.00 VCA AND COSTS OF COURT.

DEFENDANT’S ATTORNEY JOHN WHITE IN COURT.

JAMES C. WOODS [handwritten]

(Doc. 11-2 at 3). The entries for cc-2000-251, 252, and 253 are 

substantially similar except for the addition of handwritten 

language providing that the sentences were to run concurrently. 

(Id. at 4, 5, 6).

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guilty plea, wherein he expressed dissatisfaction with the 

sentence imposed by the trial court. (Doc. 11-2 at 53). The 

trial court denied Burrell’s motion as untimely. (Doc. 10 at 3). 

On June 21, 2000, Burrell filed a notice of appeal with the 

Alabama Court of Criminal Appeals. (Doc. 11-1 at 4). It was 

denied as untimely on June 30, 2000. (Doc. 11-5 at 2).

On May 3, 2001, Burrell filed his first Rule 32 petition 

challenging his conviction based on newly discovered evidence. 

(Doc. 11-5 at 3). After an evidentiary hearing, the trial court 

denied Burrell’s petition on September 28, 2001. (Id.). On 

April 30, 2002, Burrell filed his second Rule 32 petition 

alleging the trial court was without jurisdiction to impose a 

sentence because his indictment was void. He also claimed that 

newly discovered evidence supported his innocence. (Id.). On 

June 27, 2002, the court denied his petition on the merits, 

without a hearing. (Id.). On September 20, 2002, the Alabama 

Court of Criminal Appeals, in a memorandum opinion, affirmed the 

denial of Burrell’s second Rule 32 petition. (Id.). His petition 

for rehearing was overruled and a certificate of judgment was 

issued on October 29, 2002. (Doc. 11-6). On November 14, 2002, 

the Alabama Supreme Court dismissed his appeal as untimely. 

(Doc. 11-7).

Burrell filed a third Rule 32 petition on November 8, 2005. 

(Doc. 11-8). The petition was denied by the trial court, and 

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the Alabama Court of Criminal Appeals affirmed the denial of the

petition on May 19, 2006. (Doc. 11-8). The Alabama Supreme Court 

denied certiorari review and issued judgment on September 15, 

2006. (Docs. 11-8, 11-9). 

On May 7, 2009, Burrell filed a Motion to Interpret the 

clause “suspension of sentence is further conditioned on 

defendant paying $50.00 VCA and costs of court.” (Doc. 11-3 at 

49). The trial court denied Burrell’s motion on June 4, 2009. 

(Id.). Burrell filed a fourth Rule 32 petition on March 8, 2011. 

(Doc. 11-10 at 3). In the petition, Burrell asserted that the 

trial court was without jurisdiction to accept his plea 

agreement and render judgment because the 30 year sentence 

imposed upon him was illegal since it was subject to suspension; 

thus, he should be allowed to withdraw his guilty plea. (Id.) He 

also asserted that suspension of the sentence was likewise 

illegal because he is indigent, and the suspension was 

conditioned on his ability to pay fines and court costs. (Id.). 

In an order dated September 15, 2011, the trial court 

denied Burrell’s fourth Rule 32 petition. (Doc. 11-3 at 48-52). 

The trial court held that Burrell’s fourth petition was 

precluded because it was a successive petition. (Id. at 49). 

The trial court also found that Burrell’s petition failed to 

state a claim upon which relief could be granted because the 

“further conditioned” language in the court case summary was a 

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“clerical error” in the record. Additionally, the trial court 

observed that it was the same court that sentenced Burrell and 

that it was the Court’s intent to sentence Burrell to 30 years 

on each of the robbery -- first degree counts, with the 

sentences to run concurrently with one another. (Id.) Thus, the 

court corrected the record nunc pro tunc to read as follows:

“Defendant be and is hereby adjudged guilty of Robbery 

in the First Degree, for which he was indicted, and is 

now sentenced by the court to the State of Alabama 

Penitentiary for the term of thirty (30) years. 

Sentences in cases CC2000-250, 251, 252, 253 and 254 

shall run concurrent. Defendant is to be given credit 

for eight months and five days, time spent in jail. 

Defendant’s attorney John White in Court.”

(Id. at 50.) 

On appeal to the Alabama Court of Criminal Appeals, the 

appeals court affirmed the trial court’s denial on June 22, 

2012. (Doc. 11-10). In rejecting Burrell’s claim that the trial

court was without jurisdiction to correct its May 8, 2000 order, 

the appeals court observed as follows:

The changes made in this amended sentencing order 

did nothing more than clarify Burrell’s sentence. The 

changes involved no judicial discretion and did not 

result in the trial court’s rendering of a different 

judgment from that imposed at the original sentencing 

hearing. Instead, the changes reflect an effort by 

the trial court to correct a clerical mistake in its 

initial sentencing statement on the case action 

summaries, as authorized by Rule 29, Ala. R. Crim. P.

(Id. at 6). The Alabama Supreme Court denied certiorari review 

and issued judgment on September 7, 2012. (Doc. 11-11).

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On April 23,20132, Burrell filed the instant habeas petition

challenging his conviction and sentence. (Doc. 1 at 20). 

Burrell asserts that his due process and 14th amendment rights 

were violated because his original sentence provided for the 

suspension of his sentence upon the payment of costs and fines, 

and that after his family paid the accessed costs and fines, the 

trial court substantively changed his sentence by removing the 

“suspended sentence” language. Burrell contends that the trial 

court issued the “functional equivalent” of a new sentence when 

it vacated the fees and costs from his sentence. Burrell also 

asserts that the trial court unreasonably applied “clearly 

established” federal law as determined by the Supreme Court, and 

based its decision on an unreasonable determination of the 

facts. (Id.) In its response, the Respondent argues that 

Burrell’s petition should be dismissed as untimely because it 

was filed well outside of the statute of limitations. (Doc. 9 at 

8). The undersigned agrees.

II. ANALYSIS

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

April 24, 1996 enactment of The AEDPA, a state prisoner seeking 

a federal habeas corpus remedy must file his federal petition 

																																																							 2 Under the mailbox rule, absent contrary evidence, a prisoner’s 

motion is deemed filed on the date it is delivered to prison 

officials for mailing. Washington v. United States, 243 F.3d 

1299, 1301 (llth Cir. 2001). 

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

expiration of the time for seeking such review.” 3 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 judgment 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.

(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 

																																																							 3 Section 2254 was amended by the AEDPA, which became effective 

April 24, 1996. Henderson v. Campbell, 353 F.3d 880, 890 (11th 

Cir. 2003). Since Burrell filed this petition on April 23, 

2013, this action is governed by AEDPA.

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toward any period of limitation under this 

subsection.

28 U.S.C. § 2244 (d).

Burrell has not alleged that the government impeded the 

filing of his 2254 motion or that a retroactive new 

constitutional right exists in his case. Accordingly, the 

timeliness of Burrell’s petition must be calculated from the 

date that his conviction became final. While Burrell was 

sentenced in 2000, he contends that the trial court’s September 

15, 2011 nunc pro tunc order constituted a new sentencing order 

and thereby restarted the limitations clock. The Court finds 

otherwise. 

Extant case law provides that when a petitioner is 

resentenced and an amended judgment is entered, the AEDPA’s oneyear limitations period begins to run when the amended judgment 

becomes final. See e.g. Burton v. Stewart, 549 U.S. 147, 156, 

127 S. Ct. 793, 166 L.Ed. 628 (2007)(federal limitations period 

did not begin “until both [petitioner’s] conviction and sentence 

‘became final by the conclusion of direct review. . .”); 

Ferreira v. Sec’y Dep’t Corr., 494 F.3d 1286, 1293 (llth Cir. 

2007)("AEDPA's statute of limitations begins to run from the 

date both the conviction and the sentence the petitioner is 

serving at the time he files his application become final 

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because judgment is based on both the conviction and the 

sentence.").

Notwithstanding Burrell’s assertions to the contrary, he 

was not resentenced by virtue of the trial court’s September 15, 

2011 nunc pro tunc order. The nunc pro tunc order was entered 

to correct a clerical error in the original judgment. Courts 

addressing this issue have held that when a court corrects a 

clerical error in a criminal judgment, the AEDPA’s one-year 

limitations period does not begin anew. See Byrd v. Riverbend, 

2016 U.S. App. LEXIS 7188 (llth Cir. 2016); Patterson v. Florida 

Department of Corrections, 812 F. 3d 885 (llth Cir. 2016); 

United States v. Portillo, 363 F. 3d 1161, 1165 (llth Cir. 

2004)(In a § 2255 action, the court held that the correction of 

a clerical error that is “minor and mechanical in nature” in a 

sentence under Federal Rule of Criminal Procedure 36 does not 

result in the entry of a new criminal “judgment’ under Federal 

Rule of Appellate Procedure 4(b)(1)(A)); Young v. Tucker, 2012 

U.S. Dist. LEXIS 64308 (N.D. Fla., Mar. 20, 2012)(collecting 

cases). 

In Byrd, the Eleventh Circuit rejected the petitioner’s 

assertion that the trial court’s amended order restarted the 

limitations period. The Court noted that:

Under Georgia law, a sentencing court retains 

the inherent power to, at any time, correct clerical 

errors in a written sentence to reflect the court's 

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intent at the time the sentence was imposed. Griggs v. 

State, 314 Ga. App. 158, 723 S.E.2d 480, 481 (Ga. Ct. 

App. 2012). This type of correction does not 

constitute a modification of the sentence, because it 

simply perfects the record. Taylor v. State, 157 Ga. 

App. 212, 276 S.E.2d 691, 692 (Ga. Ct. App. 1981).

See Byrd v. Riverbend, 2016 U.S. App. LEXIS 7188 at *3. The 

court held that the trial court’s amended order which 

substituted the word “consecutive” for “concurrent” was “akin 

to the correction of a clerical error to reflect the court's 

original intent that related back to the original sentence.” Id. 

at 4. The Court thus concluded that the amended order did not 

restart the limitations period. Id.; See also Rojas v. United 

States, 2011 U.S. Dist. LEXIS 41700 (S.D. Fla. Mar. 21, 

2011)(entry of amended judgment to correct clerical error, i.e., 

incorrect “USM number,” did not restart §2255 limitations 

period) Report and Recommendation adopted by 2011 U.S. Dist. 

LEXISS 41631); Mathews v. Sec’y, 2009 U.S. Dist. LEXIS 122625 

(M.D. Fla. Dec. 21, 2009)(change in written sentence to correct 

omission of oral pronouncement that Petitioner was sentenced as 

habitual felony offender did not restart AEDPA’s one-year 

limitation period.); Young v. Tucker, 2012 U.S. Dist. LEXIS 

64308 at *8 (N.D. Fla. Mar. 20, 2012)(noting that correction of 

scrivener’s error on petitioner’s judgment and sentence did not 

restart one-year AEDPA limitations period, and explaining: 

“[t]he change in the written judgment was merely clerical-it 

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only corrected what was essentially a scrivener’s error, that 

is, an incorrect notation that Count Two was a first degree 

felony instead of a life felony. Petitioner’s sentence remained 

unchanged”.); Bishop v. Sec’y, Fla. Dep’t of Corr., 2013 U.S. 

Dist. LEXIS 147433 (N.D. Fla. Oct. 11, 2013)(concluding that 

corrected judgment “was simply a re-recorded version of the 2006 

original judgment after the clerk corrected the scrivener’s 

error” and “was not a new intervening judgment. . .”).

In this case, Burrell was not resentenced. As noted supra, 

the trial court’s nunc pro tunc order dated September 15, 2011 

did not announce a new sentence. It instead corrected a clerical 

error that was entered on the case summary sheet. The nunc pro 

tunc order was entered by the same judge that originally 

sentenced Petitioner, and he expressly noted as follows:

“Petitioner’s legal conclusion, whether 

expressed as an illegal suspension of a legal sentence 

or an illegal sentence, is not supported by the facts 

within the record. The phrase “suspension of sentence 

is further conditioned” implies that the sentence 

petitioner received was suspended. The record does 

not support this conclusion; rather the record 

supports the conclusion that Petitioner received 

thirty-year sentences on each charge, and that those 

sentences ran concurrently. The “further conditioned” 

language is a clerical error in the record. Nowhere 

else does the record suggest that the thirty-year 

sentences were at any time suspended on the condition 

that Petitioner pay the VCA and court costs, or that 

Petitioner received split sentences... This Court did 

not intend to suspend those sentences on any grounds, 

including those that Petitioner now alleges. Based on 

the age of this case, the transcript of the sentencing 

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hearing is no longer available. . .the undersigned 

judge as the sentencing judge has reviewed the record. 

This Court’s intent was to sentence Petitioner to 

thirty (30) years on each count of Robbery in the 

First Degree, with the sentences to run concurrently 

with one another.” 

(Doc; 11-3 at 50-51). Further, on appeal, the Alabama Court 

of Appeals determined that the trial court’s nunc pro tunc order 

did nothing more than clarify Burrell’s original sentence, and 

as such, it was authorized by Rule 29, Ala. Crim. P. (Doc. 11-

10). 

Based upon the record before the Court, the undersigned 

finds that the nunc pro tunc order entered on September 15, 2011 

did not impose a new sentence that was substantively different 

than the one originally imposed. Instead, the original 

sentencing court made clear that the nunc pro tunc order 

corrected what was essentially a scrivener’s error by 

eliminating the phrase “suspension of sentence is further 

conditioned”. The phase was erroneously included in the 

original order as it was never the court’s intent. Indeed, 

while Burrell now contends that his original sentence included a 

suspension of sentence provision, the state courts noted that in 

his first couple of Rule 32 petitions filed with the courts, 

Burrell demonstrated a clear understanding that he was sentenced 

to 30 years on each of the robbery convictions, and that said 

sentences were to be served concurrently. Accordingly, the nunc 

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pro tunc order entered on September 15, 2011 did not restart the 

one-year limitations period anew.

Burrell has not alleged that the government impeded the 

filing of his federal habeas petition or that a retroactive new 

constitutional right exists in this case; thus, the AEDPA oneyear limitations period commenced from "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 record reflects that Burrell attempted to 

file a direct appeal; however, it was dismissed as untimely (see 

doc. 11-5 at 2); thus, it had no tolling effect. See 28 U.S.C. §

2244(d)(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); See also In Re Hill, 437 F.3d 1080, 1083 (11th Cir. 

2006). 

By the time Burrell filed his first Rule 32 petition on May 

3, 2001, approximately 345 days had elapsed in the limitations 

period. The record reflects that the trial court denied the 

first petition on September 28, 2001; however, it does not 

reflect that Burrell appealed the trial court’s denial of the 

first Rule 32 petition. He did not file the second Rule 32 

petition until nearly seven months later, on April 30, 2002. 

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The limitations period had clearly expired by that point, thus, 

the second petition had no tolling effect. 

Even assuming arguendo that the second Rule 32 petition 

somehow tolled the one year limitations period, the Alabama 

Court of Criminal Appeals affirmed the denial of Burrell’s 

second Rule 32 petition as well as his application for 

rehearing. The Alabama Court of Criminal Appeals then issued a

certificate judgment on October 29, 2002, and the Alabama 

Supreme Court denied Burrell’s petition for review on November 

14, 2002. (Docs. 11-6, 11-7). Burrell did not file his federal 

habeas petition with this Court until April 23, 2013, many years 

after expiration of the ADEPA statute of limitations. 

The fact that Burrell filed two additional Rule 32 

petitions, in 2005 and 2011, is of no moment because the 

limitations period had clearly expired by the time those 

petitions were filed; thus, they had no tolling effect. Webster 

v. Moore, 199 F.3d 1256, 1259 (llth Cir. 2000)(“[E]ven ‘properly 

filed’ state-court petitions must be ‘pending’ [during the oneyear 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.”); 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 

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within the federal limitation period.”); Sibley v. Culliver, 377 

F.3d 1196, 1204 (11th Cir. 2004) (“While a properly filed 

application for post-conviction 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, Burrell’s federal habeas petition is 

untimely.

Before recommending dismissal of Burrell’ petition for 

habeas relief as untimely, the undersigned must determine 

whether Burrell has pled extraordinary circumstances that 

require a contrary conclusion. Thus, unless Burrell 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 (3d Cir. 1998) (“equitable tolling is proper only when 

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

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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, as a general rule, “the ‘extraordinary 

circumstances’ standard applied in [the Eleventh] [C]ircuit 

focuses on the circumstances surrounding the late filing of the 

federal habeas petition, rather than the circumstances 

surrounding the underlying conviction.” Helton v. Sec’y of 

Dep’t. of Corrections, 259 F.3d 1310, 1314-1315 (11th Cir. 

2001), cert. denied, 535 U.S. 1080 (2002); Drew v. Dep’t of 

Corr., 297 F.3d 1278, 1286-87 (11th Cir. 2002) overruled in part 

as stated by Sykosky v. Crosby, 187 Fed. App’x 953, 958 (11th 

Cir. 2006). In this case, Burrell has neither argued that he is 

entitled to equitable tolling nor asserted any facts that might 

give rise to the application of equitable tolling. Accordingly, 

the petition is due to be dismissed as time barred4.

III. Certificate of Appealability is denied. 

																																																							 4 Because Burrell’s petition is untimely, the court need not determine whether 

the claims within it are procedurally defaulted, although it appears that 

Burrell did not present any federal claims to the state courts; thus, those 

claims would be procedurally defaulted under O'Sullivan v. Boerckel, 526 U.S. 

838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).

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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 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 

(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 that the issues presented were "adequate to 

deserve encouragement to proceed further."'"). Inasmuch as it 

is clear that any claim for relief made pursuant to § 2254 is 

time-barred, a reasonable jurist could not conclude either that 

this Court is in error in dismissing the instant petition or 

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that the petitioner 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.").

In the instant case, Petitioner's claims do not warrant the 

issuance of a Certificate of Appealability. Petitioner's claims 

are time-barred and he has failed to demonstrate any basis for 

tolling the limitations period. Therefore, no reasonable jurist 

could differ on the appropriate disposition of the petition on 

the record presented. It is thus recommended that the Court 

deny any request for a Certificate of Appealability. Because 

Petitioner is not entitled to a Certificate of Appealability, 

any request for leave to appeal in forma pauperis is also due to 

be denied.5

																																																							 5 The guidelines for proceeding in forma pauperis are set forth 

in 28 U.S.C. § 1915. An appeal may not be taken in forma 

pauperis if the trial court certifies in writing that the appeal 

is not taken in good faith. 28 U.S.C. § 1915(a)(3); see Fed. R. 

App. P. 24(a)(3)(A); Lee v. Clinton, 209 F.3d 1025, 1026 (7th 

Cir. 2000) (concluding that “good faith” is “an objective 

concept” and that “not taken in good faith” is “a synonym for 

frivolous”); DeSantis v. United Techs, Corp., 15 F. Supp. 2d 

1285, 1288-89 (M.D. Fla. 1998) (stating that good faith “must be 

judged by an objective, not a subjective, standard” and that an 

appellant “demonstrates good faith when he seeks appellate 

review of any issue that is not frivolous”). An appeal filed in 

forma pauperis is frivolous if it appears that the appellant 

“has little or no chance of success,” meaning that the “factual 

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III. Conclusion.

Based on the foregoing, it is the recommendation of the 

undersigned Magistrate Judge that Burrell’s petition for habeas 

corpus be dismissed with prejudice as time barred and that 

judgment be entered in favor of the Respondent, Cheryl Price, 

and against the Petitioner, Reginald Burrell. It is further 

recommended that any motion for a Certificate of Appealability 

or for permission to appeal in forma pauperis be denied.

Notice of Right to File Objections

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA GenLR 72(a)(2)(R). The 

parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

																																																																																																																																																																																		

allegations are ‘clearly baseless’ or that the legal theories 

are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d 392, 

393 (11th Cir. 1993) (citations omitted). For the reasons 

previously stated in addressing the Certificate of 

Appealability, the undersigned concludes that an appeal in this 

case would be without merit and would not be taken in objective 

good faith. Thus, Petitioner is neither entitled to a 

Certificate of Appealability nor to appeal in forma pauperis.

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the right to challenge on appeal the district court’s order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th Cir. 

R. 3-1. In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, 

state the basis for the objection, and specify the place in the 

Magistrate Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by 

reference or refers to the briefing done by the Magistrate Judge 

is not specific. 

DONE this 16th day of June, 2016.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:13-cv-00242-KD-B Document 22 Filed 06/16/16 Page 20 of 20