IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BEVERLY JO JONES, :

AIS 233418,

:

Petitioner,

:

vs. CA 09-0600-WS-C

:

FRANK ALBRIGHT, 

:

Respondent.

REPORT AND RECOMMENDATION

Beverly Jo Jones, a state prisoner presently in the custody of the

respondent, has petitioned this Court for federal habeas corpus relief pursuant

to 28 U.S.C. § 2254. This matter has been referred to the undersigned for the

entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.2(c)(4). It is recommended that the instant petition be

dismissed as time barred under the Anti-Terrorism and Effective Death Penalty

Act’s one-year limitations provision contained in 28 U.S.C. § 2244(d).

Alternatively, it is recommended that the Court find that it is procedurally

barred from reaching the merits of the claims raised by Jones.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 1 of 39
1 Thereafter, Jones filed several more post-trial motions, all of which were denied

by the trial court. (See id. at 6-8)

2

FINDINGS OF FACT

1. On December 16, 2003, petitioner was found guilty, following

a jury trial, of the crime of stalking. (Doc. 13, Exhibit A, Case Action

Summary Sheet, at 3) Jones was sentenced, on January 23, 2004, to seven

years imprisonment; she was ordered to serve eighteen (18) months in a jaillike facility with the remainder of the sentence suspended pending her

successful completion of five years probation. (See id. at 5) 

2. Petitioner’s motion for judgment of acquittal or, in the

alternative, for judgment notwithstanding the verdict, as well as her motion for

new trial, were denied on February 2, 2004. (Id. at 6) That same date,

petitioner filed written notice of appeal. (Id.)1

3. On October 29, 2004, the Alabama Court of Criminal Appeals,

by memorandum opinion, affirmed petitioner’s conviction and sentence. (Doc.

23, Exhibit E)

I.

The appellant argues that the trial court erred in denying

her motion for a judgment of acquittal because the State

presented insufficient evidence to sustain her stalking

conviction. More particularly, she argues that the evidence did

not support the elements of harassing conduct, credible threat,

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 2 of 39
3

or intent.

The victim, John Jerald “Jerry” Pilgrim, a divorce

attorney in Mobile, testified that the appellant began to engage

in a pattern of disturbing conduct while he represented her in

divorce proceedings. Before he withdrew as her attorney at her

request on December 20, 1994, the appellant would follow him

and his current wife as they jogged to the YMCA. He testified

that on one occasion, she drove out of the parking lot across the

street from the YMCA, hitting the middle of his wife’s car. The

victim testified that after he no longer represented the appellant,

she continued, over the course of several years, to write him

hundreds of letters threatening him and his family. Many of the

appellant’s letters made reference to seeing the appellant (sic)

“in hell” and “the end.” He testified that on numerous occasions,

the appellant would hand deliver letters to his mother-in-law,

ex-wife, brother, and sister. On one occasion, the appellant

hand-delivered a letter to the appellant’s (sic) 91-year-old

mother, leaving her crying hysterically. He testified that he

apprehended the appellant as she was leaving his mother’s

home, blocked her vehicle in the driveway with his car, and

called the police. When the police questioned the appellant

about her presence on the premise, she responded that she was

handing out “fliers.” An investigation revealed, however, that

she had no fliers in her possession. He testified that the appellant

sent him items such as “feathers, dirt, grass, and worms in a

Tupperware bowl.” In her letters, the appellant referred to the

victim’s assigned parking spot “#56" and would leave

“paraphernalia and letters” next to it. He testified that the

appellant filed six lawsuits against him in court; including a suit

in federal court in which the pleading “didn’t make sense”; a

suit in Mobile District Court; a suit in Baldwin County seeking

to have his marriage license annulled; and a small claims case

claiming that the victim had stolen the last verse of her song

written about Judge Roy Moore. After being ordered by the

court not to have any contact with the victim, the appellant

continued to write him, stating that “Rule 33 . . . does not seem

too bad of a rule to break,” and “I feared I best just go ahead and

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 3 of 39
4

use my get-into-jail-free statement.” Evidence was presented

that the appellant was committed to Searcy State Mental

Hospital in 1995 or 1996, and discontinued writing letters to the

victim once she was placed on medication. When she left

Searcy, however, she was no longer on medication and began to

again write letters. The victim testified that when he testified in

a proceeding to get the appellant recommitted to Searcy, the

phone calls and letters “picked back up again.” The appellant

was then placed in a halfway house, but left and began

contacting the victim again. After she appeared in a courtroom

in which the victim was trying a case, he had to be escorted to

his office by two security employees to avoid what the building

manager describes as a “potential disastrous conflict.” The

victim testified that he observed the appellant frequenting the

courthouse on numerous occasions. He also testified that she

approached the building manager to inquire about renting office

space next to the victim’s office. He testified that the appellant’s

conduct had a considerable effect of his well-being, and that he

feared for his safety and that of his family.

Additionally, the State presented evidence through the

testimony of a psychologist, Dr. Doug McKeown, hired by the

court to evaluate the appellant’s competency to stand trial, that

the appellant had a “well-documented history of bipolar

disorder.” Dr. McKeown agreed that the appellant was “still

capable of understanding the right actions and the wrong

actions” and had the “ability at that time to understand and

appreciate her actions and behaviors.” He indicated that the

appellant voluntarily chose to engage in “non-productive type

behavior” but was “in denial” that her own behavior fit into this

category. He testified that the appellant was “very much more

prone . . . toward impulsive-type behavior, . . . often reacting

without thinking.” 

A reviewing court, when examining the

sufficiency of the evidence on a motion for a

judgment of acquittal, 

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 4 of 39
5

must accept the evidence presented by the

state as true, must view that evidence in a light

most favorable to the state, and must accord the

state all legitimate inferences from the evidence.

Where there is legal evidence from which a jury

could by fair inference find a defendant guilty, a

trial judge should submit the case to the jury. 

Section 13A-6-90, Code of Alabama 1975,

states, in pertinent part:

(a) A person who intentionally and

repeatedly follows or harasses another person and

who makes a credible threat, either expressed or

implied, with the intent to place that person in

reasonable fear of death or serious bodily harm is

guilty of the crime of stalking.

[]

In order to prove a prima facie case of

stalking, the State must show three elements.

First, the State must prove that the accused

intentionally and repeatedly follow[ed] or

harass[ed] another person. Second, the accused

must have made a credible threat. Finally, the

accused must have intended to place the victim in

reasonable fear of death or serious bodily injury.

Here, the State was required to present evidence that the

appellant either followed the victim on more than one occasion

or that the appellant harassed the victim on more than one

occasion.

Harassing is defined in § 13A-6-92(c),

Code of Alabama 1975. In order to prove

harassing conduct, the State must show that (1)

the accused engag[ed] in an intentional course of

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 5 of 39
6

conduct directed as (sic) a specified person, (2)

that conduct alarm[ed] or annoy[ed] that person,

or interfer[ed] with the freedom of movement of

that person, and which serv[ed] no legitimate

purpose, and (3) the course of conduct is such as

would cause a reasonable person to suffer

substantial emotional distress, and must actually

cause substantial emotional distress.

The State’s evidence showed that the appellant not only

followed the victim on more than one occasion, but she also

harassed him on numerous occasions. Based on the aforestated

evidence, it is clear that the appellant’s acts could, and did, in

fact, cause the victim, a reasonable person, to suffer substantial

emotional distress. 

Additionally, the appellant’s actions showed a pattern of

intentional conduct directed at the victim. Although the

appellant argues that the hundreds of letters she sent to the

victim failed to establish “threats by innuendo”, the fact that she

made references to seeing the victim “in hell” and “the end,”

and attempted to have his marriage annulled, was evidence

properly submitted to the jury for its determination. The

appellant further argues that because the letters were the product

of her mental illness, she never intended any such threats.

Again, the jury had before it expert testimony that, despite the

appellant’s bipolar disorder, she had the ability to distinguish

right from wrong and, although she was in denial, was aware of

the nature of her actions.

Lastly, the appellant’s argument that the State failed to

prove that she made any “credible threat” toward the victim is

without merit. A threat, whether express or implied, is credible

if (1) it is made with the intent to cause the victim to fear for his

or her safety or the safety of a family member; (2) the accused

has the apparent ability to carry out the threat; (3) it causes the

victim to fear for her safety or the safety of a family member[;]

and (4) it causes reasonable mental anxiety, anguish or fear. 

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 6 of 39
7

Not only did the appellant send the victim and his family

members hundreds of threatening letters, she followed the

victim and his wife as they were jogging, and proceeded to ram

into the side of his wife’s parked vehicle. Such evidence shows

that the appellant had a complete disregard for the law, was

highly unpredictable and, therefore, had the apparent ability to

carry out her threats toward the victim.

The trial court’s ruling denying the motion for a

judgment of acquittal was correct.

...

III.

The appellant argues that the trial court erred by failing

to give the definition of “harasses” as set out in the stalking

statute, § 13A-6-92(c), Ala. Code 1975.

An examination of the record reveals that the trial court

omitted the portions of that definition indicating that harassing

conduct “must actually cause substantial emotional distress” and

that such conduct could not include “constitutionally protected

conduct.”

...

Because the definition of “harasses” proposed by the

appellant tracked the statutory definition, it was a correct

statement of law. A review of the other two requirements,

enunciated in Yeomans, however, indicates that no reversible

error occurred here. First, the omission of the “constitutionally

protected conduct” language from the definition of “harasses”

was not erroneous because the trial court instructed the jury that

“the conduct serves no legitimate purpose.” In Bartlett v. State,

701 So.2d 305 (Ala. Crim. App. 1997), this Court held that the

omission of the “constitutionally protected conduct” language

from the definition of “harasses” was not erroneous when the

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 7 of 39
8

trial court instructed the jury that the conduct “serves no

legitimate purpose.” Because that portion of the appellant’s

requested instruction was substantially covered by the trial

court’s charge, her argument is without merit. Lastly, although

not covered by the trial court’s charge, the court’s omission of

the requirement that harassing conduct must cause the victim

“substantial emotional distress”, does not constitute reversible

error because the appellant has failed to show any prejudice as

a result of the omission. In order to prove a prima facie case of

stalking, the State was required to prove, in pertinent part, that

the appellant “intentionally and repeatedly followed or harassed

another person.” Because the State presented ample evidence,

by alternative methods, that the appellant both harassed and

followed the victim, the failure to charge on “substantial

emotional distress”, as it relates to the definition of

“harassment” was harmless error. It need be noted that although

the appellant took the stand in her own defense, the evidence

was undisputed that she had followed the victim on numerous

occasions.

IV.

The appellant argues that the jury’s verdict finding her

guilty of stalking was contrary to the weight of the evidence

showing her insanity.

It is not the function of this Court to decide whether the

evidence is believable beyond a reasonable doubt and to a moral

certainty; instead, the function of this Court is to determine

whether there is legal evidence from which the jury could by fair

inference find the defendant guilty. Where this (sic) is legal

evidence from which the jury could by fair inference find the

defendant guilty, this Court will not disturb the jury’s verdict.

Moreover, this Court has repeatedly held that it is not within the

province of this Court to reweigh the evidence presented at trial.

The judgment of the trial court is affirmed.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 8 of 39
9

(Id. at 1-6, 6 & 7-8 (some internal citations and quotation marks omitted;

emphasis in original)) A certificate of final judgment of affirmance was issued

by the Alabama Court of Criminal Appeals on November 17, 2004. (Doc. 23,

Exhibit F) 

4. On or about December 1, 2004, Jones filed an application for

rehearing. (Doc. 23, Exhibit G) Based upon this pleading, the Alabama Court

of Criminal Appeals, on December 21, 2004, recalled the certificate of

judgment it issued on November 17, 2004. (Doc. 23, Exhibit H) On January

7, 2005, the Alabama Court of Criminal Appeals overruled Jones’ application

for rehearing. (Doc. 23, Exhibit I) 

5. On or about January 10, 2005, Jones copied the Alabama

Supreme Court with a petition for writ of habeas corpus filed in the United

States District Court in Kansas. (Doc. 23, Exhibit J) The Alabama Supreme

Court construed the pleading as a petition for writ of certiorari which it then

struck for failure to comply with Rule 39 of the Alabama Rules of Appellate

Procedure. (Doc. 23, Exhibit K)

6. On or about January 23, 2005, Jones filed another application for

rehearing in the Alabama Court of Criminal Appeals. (Doc. 23, Exhibit L)

This application was denied by order dated January 27, 2005 (Doc. 23, Exhibit

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 9 of 39
2 This motion was denied by the trial court on February 17, 2009. (Doc. 13, Exhibit

B, Case Action Summary Sheet, at 3)

10

N). One day prior thereto, on January 26, 2005, the Alabama Court of Criminal

Appeals issued its certificate of final judgment of affirmance. (Doc. 23,

Exhibit M)

7. On or about February 10, 2005, Jones filed a petition for writ of

certiorari in the Alabama Supreme Court. (Doc. 23, Exhibit O) This petition

was stricken for failure to comply with Rule 39(c) of the Alabama Rules of

Appellate Procedure. (Doc. 23, Exhibit P)

8. Thereafter, petitioner did nothing with respect to her stalking

conviction and sentence until filing, on February 11, 2009, in the Circuit Court

of Mobile County, Alabama a “Motion to Order Time Served and Cause of

Action Voided.” (Doc. 23, Exhibit Q)2

 One day prior thereto, on February 10,

2009, the trial court made an initial determination that Jones had violated the

terms and conditions of her probation by violating the no-contact order. (Doc.

13, Exhibit B, Case Action Summary Sheet, at 2) Jones was ordered held in the

county jail pending disposition of a commitment hearing in Mobile County

Probate Court. (Id.) When the Probate Court matter was withdrawn on

February 12, 2009, the trial court set Jones’ case for review on February 17,

2009. (Id.) Following that review, Jones’ probation was revoked based on a

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 10 of 39
11

finding that she continued to have contact with the victim. (Id. at 3) Jones was

ordered to begin serving the remainder of her sentence, that is, five and onehalf (51⁄2) years and was given credit for twenty-four (24) days spent in jail.

(Id.) 

9. The Alabama Court of Criminal Appeals denied a petition for

writ of habeas corpus filed by Jones on March 6, 2009 (Doc. 23, Exhibit S)

and also issued its certificate of final judgment of affirmance with respect to

her appeal on March 13, 2009 (Doc. 23, Exhibit V). Jones’ “Motion to

Reconsider/Motion to Combine Hearings” (Doc. 23, Exhibit W) was construed

by the Alabama Court of Criminal Appeals as an application for rehearing and

was overruled (Doc. 23, Exhibit X). 

10. On or about July 7, 2009, Jones filed a “three-headed” petition

in the Alabama Supreme Court. (Doc. 23, Exhibit Y) The petition was denied

on July 29, 2009. (Doc. 23, Exhibit Z) Petitioner’s August 7, 2009 application

for rehearing (Doc. 23, Exhibit AA) was denied by the Alabama Supreme

Court on August 26, 2009 (Doc. 23, Exhibit BB). 

11. Jones filed the instant petition on or about September 2, 2009

(see Doc. 1, at 14) and from that document the undersigned discerns that

petitioner raises the following claims which she contends entitle her to relief:

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 11 of 39
3 Petitioner claims in this regard, the following: “The only true issue that prevents

my being found innocent of this ‘stalking’ charge is that the trial judge died & the appointed

attorney did not follow the trial judge’s order to continue throughout all appeals, so although I

have filed many petitions & motions, I did not claim so above because my claim was not

appeal[ed] from wrongful conviction but from 1st Amendment Rights.” (Doc. 1, at 5)

Petitioner’s observation that her “claim was not appeal[ed] from wrongful conviction but from

1st Amendment Rights[,]” is inaccurate as it should be clear to anyone reading the opinion of the

Alabama Court of Criminal Appeals on direct review that appellate counsel attacked Jones’

stalking conviction primarily upon the basis that insufficient evidence was offered at trial to

establish her guilt of that crime.

4 The undersigned is of the opinion that this issue is not a proper claim for federal

habeas corpus relief inasmuch as it appears to be Jones’ argument that she has been prevented by

unidentified Alabama authorities from pursuing her domestic relations case in the state courts of

Mississippi. (See Doc. 1, at 6) This “issue” raises no constitutional concerns with respect to

petitioner’s stalking conviction.

5 Jones has made clear that through the instant action she is solely attacking her

underlying December 16, 2003 stalking conviction; she is not attacking the revocation of her

probation. (See Doc. 27, at ¶ 10 (“Section 2254 Habeas Corpus Rules require the Probation

Revocation in February 2009 to be addressed in a separate petition, which Petitioner did appeal

but has not had time to process.”))

12

(1) her constitutional right to communicate her defense to the attorney

appointed to file her appeal was violated as was her right to effective

representation on appeal;3

 and (2) denial of freedom of movement.4 (See Doc.

1, at 5-7)5

12. In answer to the petition, the respondent claims that Jones’

federal habeas petition comes too late and is time-barred under 28 U.S.C. §

2244(d) (see Doc. 13, at 3-4; Doc. 23, at 8-9) and alternatively contends that

this Court is procedurally barred from reaching the merits of petitioner’s

claims (see Doc. 23, at 9-11). Filtering through petitioner’s many distorted

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 12 of 39
13

arguments in response to this Court’s show cause order (Doc. 29), the

undersigned discerns the following arguments made by petitioner relative to

the respondent’s defenses:

I. The Appointed Attorney to Trial and Appeal

Ended Direct Appeal on Insufficient Grounds to Proceed on 17

Nov 2004.

1. Petitioner’s “Motion for Evidentiary Hearing”

(Doc. # 18), Paragraph #2, explains that she presently possesses

“the Nov 23, 2004 letter” from appointed attorney, Pete J.

Vallas, in which he wrote that he would not appeal[,] inasmuch

as he “concluded that there are insufficient grounds to proceed

. . . to the Supreme Court of AL” and “therefore [he] did not

submit a Request for Rehearing . . .,” the Certificate of

Judgment dated 26 JAN 2005 referenced by the Respondent’s

counsel cannot be valid.

2. Even though Petitioner did pursue pro se from Mr.

Vallas’ lack of continuing the appeal, because Petitioner has

never been allowed the court reporter’s transcript nor a copy of

the Attorney General’s Appellate Brief, and until April 2005 had

never seen her protected file with docket summary, which are

necessary to plead a Certiorari, her appeal from the Certificate

of Judgment gained by the appointed counsel would be

erroneous in light of this fact. 

...

[] The trial judge died, the assistant district attorney

[] went into private practice, thereby, Mr. Vallas’ appointed

status by the trial judge to the trial and through appeals is not

revocable; inasmuch, the appeal from conviction ended upon the

Criminal Appeals’ Court’s Certificate of Judgment dated 17

NOV 2005, and it appears Mr. Vallas’ action tolled time

limitations.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 13 of 39
6 Petitioner has made clear in her most recent pleading (Doc. 31) that her § 2254

petition is now ripe for a ruling by this Court. (Compare id. at 2 (“That Petitioner timely mailed

the Court and served Respondent [with] her Response before she received the Court’s [order]

granting [] additional time; inasmuch, she has actually answered interrogatories 3b as well as can

be expected from within the prison; interrogatories 3c and 3d do not apply in that there appears

to be no procedural default; therefore, Petitioner will not need more time; the court has granted

all that Petitioner considers necessary to accomplish any better arguments from unlawful

14

...

IV. Speculatively the Limitations Period Has Been

Tolled.

1. Thus presented, above, supports that the limitation

period has been tolled– stopped the running of.

2. Only with the appointed attorney, Pete J. Vallas’

evidence, can a possible “delayed appeal” establish a “date on

which the judgment” is final per 28 U.S.C.A. § 2244(d)(1)(A),

wherein Black’s defines such appeal permissively granted by a

review court after the time for appeal has expired in special

circumstances.

...

Petitioner does not agree with Respondent’s position that

one or more procedural defaults have occurred, in answer to

Question # 3a.

...

Petitioner does not [have] access [to] documents nor law

to thoroughly try to reply to Questions # 3b, 3c or 3d while in

prison, although Petitioner is innocent of the crime upon which

the custody of 2002-the present is based, to answer Question 3e.

(Id. at 2, 3, 4, 8 & 10)6

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 14 of 39
detainment.” with id. at 3 (“Wherefore, the premises considered, Petitioner, having no[thing]

further [] to offer the court than has been [presented], requests the court grant her writ of

habeas corpus!”) (emphasis supplied))

15

CONCLUSIONS OF LAW

A. Statute of Limitations.

1. The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) was enacted on April 24, 1996 and, pertinent to this case, added

a new subdivision to 28 U.S.C. § 2244 providing for a one-year period of

limitations within which state prisoners must file their habeas corpus petitions

pursuant to 28 U.S.C. § 2254. Wilcox v. Florida Dept. of Corrections, 158

F.3d 1209, 1210 (11th Cir. 1998). 

(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 limitation 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 

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 15 of 39
16

 

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through the

exercise of due 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

toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

2. Subsections (B), (C), and (D) of § 2244(d)(1) clearly do not

apply to petitioner’s case and therefore, the timeliness of Jones’ petition must

be calculated under § 2244(d)(1)(A) based upon the date on which his incest

conviction became final. “For prisoners whose convictions became final prior

to the effective date of the AEDPA, the one-year statute of limitations

instituted by the AEDPA began to run on its effective date, i.e., April 24,

1996.” Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999) (citations

omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000).

This rule from Guenther is obviously not applicable in this case since Jones’

underlying stalking conviction became final in 2005.

3. Section 2244(d)(1)(A) specifically provides that the one-year

limitations period will run from “the date on which the judgment became final

by the conclusion of direct review or the expiration of time for seeking such

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 16 of 39
7 Jones’ failure to file a proper petition for writ of certiorari in the Alabama

Supreme Court prevented the court of last resort in Alabama from considering her direct appeal;

therefore, the Supreme Court of the United States clearly would have been unable to consider

Jones’ case on direct review. See Pugh v. Smith, 465 F.3d 1295, 1299 (11th Cir. 2006) (“The

Supreme Court of the United States may grant a writ of certiorari to review the final judgment of

‘the highest court of a State in which a decision could be had.’ . . . A defendant has 90 days from

the judgment of the state court of last resort to file a petition for a writ of certiorari in the

Supreme Court of the United States. . . . In the absence of a clear statutory or constitutional bar

to higher state court review . . . the Supreme Court requires petitioners to seek review in the

state’s highest court before filing a petition for writ of certiorari.”). 

17

review[.]” On direct appeal, the Alabama Court of Criminal Appeals affirmed

Jones’ conviction and sentence by memorandum decision released on October

29, 2004 and while Jones filed several applications for rehearing and attempted

to seek certiorari review of her stalking conviction and sentence in the

Alabama Supreme Court, her certiorari petitions were stricken for failure to

comply with Rule 39 of the Alabama Rules of Appellate Procedure and both

of her applications for rehearing were denied by Alabama’s intermediate

appellate court.7

 The Alabama Court of Criminal Appeals issued a certificate

of final judgment of affirmance on January 26, 2005; therefore, her stalking

conviction became final on that date. Cf. Brown v. Hooks, 176 Fed. Appx. 949,

951 (11th Cir. 2006) (“On March 23, 2001, the Alabama Court of Criminal

Appeals affirmed his conviction. Brown did not petition for certiorari review

in the Alabama Supreme Court, and his conviction became final on April 10,

2001, when the Certificate of Judgment issued.”); see Bridges v. Johnson, 284

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 17 of 39
18

F.3d 1201, 1202 (11th Cir. 2002) (“Bridges pled guilty to terroristic threats,

aggravated assault and stalking charges, and was sentenced to 26 years’

imprisonment on November 12, 1996. He did not appeal his convictions and

sentences, but he did request that his sentence be reviewed by a sentence

review panel, pursuant to O.C.G.A. § 17-10-6. . . . As provided in 28 U.S.C.

§ 2244(d)(1)(A), his judgment became final on the date that the time for

seeking direct review expired; this date was not affected by his application for

sentence review, because an application for sentence review is not a part of the

direct appeal process under Georgia law. . . . Accordingly, Bridges’ judgment

of conviction became final on December 21, 1996, the date on which his 30-

day right to appeal the November 21, 1996 judgment expired.”); Tinker v.

Moore, 255 F.3d 1331, 1332 & 1333 (11th Cir. 2001) (“Tinker was convicted

on the robbery charge, and on January 29, 1997, the Third District Court of

Appeal affirmed his conviction. . . . The mandate issued on February 14, 1997.

. . . Under Florida law, a judgment against a criminal defendant becomes final

upon issuance of the mandate on his direct appeal. . . . Tinker’s mandate issued

on February 14, 1997, and thus he had until February 13, 1998, to file his §

2254 petition, absent tolling of the limitations period.”), cert. denied, 534 U.S.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 18 of 39
8 This Court recognizes that AEDPA’s one-year statute of limitations “allows a

prisoner the time to seek direct review in the Supreme Court of the United States.” Pugh, supra,

465 F.3d at 1299; see also Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (“Appellant was

entitled to file a petition for writ of certiorari in the United States Supreme Court within 90 days

of the entry of the judgment against him by the Florida Supreme Court. Sup.Ct.R. 13.1. The

statute of limitations under 28 U.S.C. § 2244(d) should not have begun to run until this 90-day

window had expired. Appellant’s state judgment became final on December 13, 1996, when the

Florida Supreme Court denied Appellant’s motion for a rehearing. The statute of limitations

should have begun to run, therefore, on March 17, 1997.”). However, in those instances, as here,

where a petitioner is not entitled to seek review in the Supreme Court of the United States, she is

not entitled to the benefit of the 90-day period for filing a petition for writ of certiorari in the

United States Supreme Court, Sup. Ct. R. 13.1 (“Unless otherwise provided by law, a petition for

writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of

last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after the entry

of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state

court that is subject to discretionary review by the state court of last resort is timely when it is

filed with the Clerk within 90 days after entry of the order denying discretionary review.”); 28

U.S.C. § 1257(a) (“Final judgments or decrees rendered by the highest court of a State in which

a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where . . .

any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the

treaties or statutes of, or any commission held or authority exercised under, the United States.”).

See Pugh, 465 F.3d at 1299-1300. As previously established, Jones did not file a proper

certiorari petition seeking direct review of her conviction and sentence in the state court of last

resort, that is, the Alabama Supreme Court; therefore, she was not entitled to seek direct review

in the United States Supreme Court. See id. Jones’ conviction became final when the certificate

of judgment issued from the Alabama Court of Criminal Appeals on January 26, 2005, Brown,

supra, and this Court need not add to that final judgment date the 90 days contemplated in

Supreme Court Rule 13.1, compare Pugh, 465 F.3d at 1299-1300 with Tinker, supra, 255 F.3d at

1332 & 1333. 

19

1144, 122 S.Ct. 1101, 151 L.Ed.2d 997 (2002).8

4. Jones’ one-year period of limitations under AEDPA began to

run on January 26, 2005 and expired on January 26, 2006. Petitioner is unable

to take advantage of the tolling provision built into § 2244(d), 28 U.S.C. §

2244(d)(2) (“The time during which a properly filed application for State postCase 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 19 of 39
9 Petitioner’s conclusory allegation to the contrary (see Doc. 29, at 6

(“Respondent’s argument that the court referenced on page # 2 of its ORDER (DOC # 25),

‘petitioner did not collaterally attack conviction and sentence’ is not true[.]”)) is not compelling

because nowhere in her response does she ever reference collaterally attacking her conviction

and sentence in the state courts of Alabama via Rule 32 of the Alabama Rules of Criminal

Procedure (see Doc. 29). In fact, the collateral petitions Jones cites were all filed in various

federal district courts in Alabama or Mississippi (id. at 5) and by petitioner’s own description

were “filed from the direct or indirect allowances of state courts for Complainant J. Jerry Pilgrim

to counter-claim against her civil and criminal actions docketed in various state courts.” (Id. at 6) 

20

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 section.”); Guenther, supra, 173 F.3d at 1331 (“‘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 in [subsection (d)].’”); cf. Coates v. Byrd, 211

F.3d 1225, 1227 (11th Cir. 2000) (“We agree with the Tenth and Fifth Circuits

that the time during which a petition for writ of certiorari is pending, or could

have been filed, following the denial of collateral relief in the state courts, is

not to be subtracted from the running of time for 28 U.S.C. § 2244(d)(1)

statute of limitations purposes.”), cert. denied, 531 U.S. 1166, 121 S.Ct. 1129,

148 L.Ed.2d 995 (2001), because she filed no Rule 32 state collateral attack on

her conviction and sentence9

 and, in fact, the only pleading she has filed since

her conviction which might be considered a collateral state attack is the “threeCase 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 20 of 39
21

headed” petition she filed in the Alabama Supreme Court on or about July 7,

2009 (Doc. 23, Exhibit Y), well after the expiration of the limitations period.

Compare McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir. 2009) (“While

a Rule 32 petition is a tolling motion under § 2244(d)(2), it cannot toll the oneyear limitations period if that period has expired prior to filing the Rule 32

petition.”) with Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir. 2005) (“On

March 19, 1999, Howell’s attorney filed a motion for an extension of time

within which to file a petition for postconviction relief. That motion was

granted and Howell’s attorney filed a state petition for postconviction relief

on August 30, 1999, more than two months after the federal limitations period

elapsed. It is undisputed that Howell’s motion for an extension of time did not

meet the criteria of section 2244(d)(2) as a ‘properly filed application’ for

postconviction relief.”), cert. denied, 546 U.S. 1108, 126 S.Ct. 1059, 163

L.Ed.2d 885 (2006), and Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.)

(“Under § 2244(d)(2), even ‘properly filed’ state-court petitions must be

‘pending’ in order to toll the limitations period. A state-court petition like

Webster’s that is filed following the expiration of the limitations period cannot

toll that period because there is no period remaining to be tolled.”), cert.

denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 454 (2000); see also Pace

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 21 of 39
22

v. DiGuglielmo, 544 U.S. 408, 413, 125 S.Ct. 1807, 1811-1812, 161 L.Ed.2d

669 (2005) (“As in Artuz, we are guided by the ‘common usage’ and

‘commo[n] underst[anding]’ of the phrase ‘properly filed.’ In common

understanding, a petition filed after a time limit, and which does not fit within

any exceptions to that limit, is no more ‘properly filed’ than a petition filed

after a time limit that permits no exceptions. The purpose of AEDPA’s statute

of limitations confirms this commonsense reading. On petitioner’s theory, a

state prisoner could toll the statute of limitations at will by filing untimely state

postconviction petitions. This would turn § 2244(d)(2) into a de facto

extension mechanism, quite contrary to the purpose of AEDPA, and open the

door to abusive delay.”). Accordingly, the only avenue by which this Court

can consider the merits of petitioner’s § 2254 petition is by finding that she is

entitled to equitable tolling of AEDPA’s one-year limitations period.

5. The Eleventh Circuit has clearly embraced the doctrine of

equitable tolling with regard to the one-year limitations period at issue:

“Equitable tolling is to be applied when ‘”extraordinary circumstances” have

worked to prevent an otherwise diligent petitioner from timely filing his

petition.’ . . . Thus, the petitioner must show both extraordinary circumstances

and due diligence in order to be entitled to equitable tolling.” Diaz v. Secretary

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 22 of 39
23

for the Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (citation

omitted). “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.’” Steed v. Head, 219 F.3d 1298, 1300 (11th

Cir.2000) (citation omitted). Thus, the one-year limitations provision need not

be equitably tolled unless there is evidence that “extraordinary circumstances”

beyond petitioner’s control made it impossible for him to file his petition on

time. See Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-

619 (3rd Cir. 1998) (“[E]quitable tolling is proper only when the ‘principles

of equity would make [the] rigid application [of a limitation period] unfair.’ .

. . Generally, this will occur when the petitioner has ‘in some extraordinary

way . . . been prevented from asserting his or her rights.’ . . . The petitioner

must show that he or she ‘exercised reasonable diligence in investigating and

bringing [the] claims.’ . . . Mere excusable neglect is not sufficient.”);

Calderon v. United States District Court for the Central District of California,

128 F.3d 1283, 1288 (9th Cir. 1997) (“Equitable tolling will not be available

in most cases, as extensions of time will only be granted if ‘extraordinary

circumstances’ beyond a prisoner’s control make it impossible to file a petition

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 23 of 39
10 In truth, such an argument would not serve as a basis to equitably toll the

limitations period. Gardner v. Walker, 2005 WL 1127137, *1 (M.D. Ga. 2005) (“‘Ignorance of

the law is no excuse; it is not a reason for equitable tolling.’ . . . Here, Petitioner’s Objection is

without merit because his ignorance of AEDPA’s limitations period fails to amount to

‘extraordinary circumstance[s]’ for equitable tolling purposes.”); see also Burton v. Deloach,

2008 WL 2131398, *2 (M.D. Ala.) (“The law is well settled that an inmate’s lack of legal

knowledge, his failure to understand legal principles and/or the inability to recognize potential

claims for relief at an earlier juncture do not constitute extraordinary circumstances sufficient to

warrant equitable tolling of the limitation period.”), report & recommendation adopted by 2008

WL 2131395 (2008); see Teel v. Farrell, 2006 WL 1148817, *4 (M.D. Ala. 2006) (“[A]n

inmate’s status as a pro se litigant does not warrant equitable tolling.”). 

24

on time.”), cert. denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998)

and cert. denied sub nom. Beeler v. Calderon, 523 U.S. 1061, 118 S.Ct. 1389,

140 L.Ed.2d 648 (1998). 

6. In this case, petitioner has not established that the instant habeas

corpus petition was timely filed nor has she established that extraordinary

circumstances and due diligence counsel equitable tolling of the limitations

period. See Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (“‘The

burden of establishing entitlement to this extraordinary remedy plainly rests

with the petitioner[.]’”). Petitioner makes no argument that she was ignorant

of the one-year limitations period.10 Instead, she appears to contend that the

limitations period was tolled by her appointed attorney’s action in abandoning

her direct appeal after the Alabama Court of Criminal Appeals affirmed her

conviction and sentence. While this argument could well impact a procedural

default analysis, it does not impact the statute of limitations analysis because

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 24 of 39
11 “[N]either an alleged inadequate prison law library nor limited access thereto

establishes extraordinary circumstances which justify an equitable tolling of the limitation

period.” Teel, supra, at *1 (citations omitted) Moreover, “[a] petitioner’s reliance on the

assistance and/or erroneous advice of an inmate clerk fails to establish extraordinary

circumstances necessary to excuse the untimely filing of a petition.” Burton, supra, at *6

(citation omitted). Finally, the Eleventh Circuit has repeatedly determined that “attorney

negligence is not a basis for equitable tolling[,]” Holland v. Florida, 539 F.3d 1334, 1339 (11th

Cir. 2008) (citations omitted), cert. granted, U.S. , 130 S.Ct. 398, 175 L.Ed.2d 267

(2009); see also Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924

(2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling,

particularly in the postconviction context where prisoners have no constitutional right to

counsel.”), “especially when the petitioner cannot establish his own diligence in ascertaining the

federal habeas filing deadline.” Howell, supra, 415 F.3d at 1252.

25

Jones’ receipt of the January 26, 2005 certificate of final judgment of

affirmance placed her on notice that she had one year from that date to either

file her federal habeas petition attacking her stalking conviction or to

collaterally attack her conviction in the state courts of Alabama via Rule 32 of

the Alabama Rules of Criminal Procedure. Jones has nothing to blame other

than her own lack of due diligence for the tardy filing of the instant petition;

therefore, the undersigned is unable to find that this is one of those rare cases

in which principles of equitable tolling can save petitioner from AEDPA’s

one-year limitations period.11

7. Jones’ final contention is that the one-year limitations period

should be equitably tolled since she is actually innocent of stalking. (See Doc.

29, at 10 (“Petitioner is innocent of the crime upon which the custody of 2002-

the present is based[.]”)) Although the Eleventh Circuit has not yet decided

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 25 of 39
12 “Unpublished opinions are not considered binding precedent, but they may be

cited as persuasive authority.” 11th Cir. R. 36-2.

26

“whether a showing of actual innocence is an exception to the one-year statute

of limitations in AEDPA[,]” Ray v. Mitchem, 272 Fed.Appx. 807, 810 n.2

(11th Cir.),12 cert. denied, U.S. , 129 S.Ct. 204, 172 L.Ed.2d 170 (2008),

it has guided courts to make the actual innocence inquiry as opposed to

“addressing the difficult constitutional question of whether the limitations

period constitutes a violation of the Suspension Clause if the petitioner can

show actual innocence[.]” Id. To be credible, a claim of actual innocence

“requires petitioner to 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, 115 S.Ct. 851, 865, 130 L.Ed.2d 808

(1995); see also id. at 327, 115 S.Ct. at 867 (“To establish the requisite

probability, the petitioner must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the new evidence.”).

Jones has not come forward with any new reliable evidence which establishes

her actual innocence of stalking and thereby undermines her conviction of this

charge. Accordingly, her federal habeas petition is time-barred. Cf. Justo v.

Culliver, 317 Fed.Appx. 878, 881 (11th Cir. 2008) (“Justo fails to show actual

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 26 of 39
27

innocence to the offense to which he pleaded guilty. No error has been shown

in the dismissal of Justo’s habeas petition as time-barred.”). 

B. Procedural Default Doctrine.

8. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991), the Supreme Court stated that it would “not review a

question of federal law decided by a state court if the decision of that court

rests on a state law ground that is independent of the federal question and

adequate to support the judgment.” Id. at 729, 111 S.Ct. at 2553-2554. This

rule applies whether the state law ground is procedural or substantive. Id. at

729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review

when a state court declines to address a petitioner's federal claims because the

petitioner fails to meet a state procedural requirement. Id. at 729-730, 111

S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and

appellate procedural rules when enforced by state courts and must decline to

review on the merits claims that the state treats as barred absent a showing of

cause for non-compliance with such rules and resulting prejudice); Alderman

v. Zant, 22 F.3d 1541, 1549 (11th Cir.) (“Pursuant to the doctrine of procedural

default, a state prisoner seeking federal habeas corpus relief, who fails to raise

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 27 of 39
28

his federal constitution[al] claim in state court, or who attempts to raise it in

a manner not permitted by state procedural rules is barred from pursuing the

same claim in federal court absent a showing of cause for and actual prejudice

from the default.”), cert. denied sub nom. Alderman v. Thomas, 513 U.S.1061,

115 S.Ct. 673, 130 L.Ed.2d 606 (1994). “In these cases, the state judgment

rests on independent and adequate state procedural grounds.” Coleman, 501

U.S. at 730, 111 S.Ct. at 2554 (citations omitted).

9. The application of the independent and adequate state ground

doctrine in the habeas context is grounded in concerns of federalism and

comity. Id.

Without the rule, a federal district court would be able to do in

habeas what this Court could not do on direct review; habeas

would offer state prisoners whose custody was supported by

independent and adequate state grounds an end run around the

limits of this Court's jurisdiction and a means to undermine the

State's interest in enforcing its laws.

Id. at 730-731, 111 S.Ct. at 2554.

 10. An additional consideration comes to the fore when the

independent and adequate state ground supporting a petitioner’s custody is a

state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has

long held

that a state prisoner’s federal habeas petition

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 28 of 39
29

should be dismissed if the prisoner has not

exhausted available state remedies as to any of his

federal claims. (citations omitted) This

exhaustion requirement is also grounded in

principles of comity; in a federal system, the

States should have the opportunity to address and

correct alleged violations of state prisoners’

federal rights.

 . . .

[A] habeas petitioner who has failed to meet the

State's procedural requirements for presenting his

federal claims has deprived the state courts of an

opportunity to address those claims in the first

instance. A habeas petitioner who has defaulted

his federal claims in state court meets the

technical requirement for exhaustion; there are no

state remedies any longer “available” to him.

(citations omitted) In the absence of the

independent and adequate state ground doctrine in

federal habeas, habeas petitioners would be able

to avoid the exhaustion requirement by defaulting

their federal claims in state court. The

independent and adequate state ground doctrine

ensures that the States' interest in correcting their

own mistakes is respected in all federal habeas

cases.

Id. at 731, 732, 111 S.Ct. at 2554-2555, 2555.

11. In the habeas context, federal courts are to “presume that there

is no independent and adequate state ground for a state court decision when the

decision ‘fairly appears to rest primarily on federal law, or to be interwoven

with the federal law, and when the adequacy and independence of any possible

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 29 of 39
30

state law ground is not clear from the face of the opinion.’” Id. at 735, 111

S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct.

3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255,

263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) (“[A] procedural default

does not bar consideration of a federal claim on either direct or habeas review

unless the last state court rendering a judgment in the case ‘clearly and

expressly’ states that its judgment rests on a state procedural bar.”). In all

other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739,

111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed

presumption is inapplicable to a claim that is never presented to the state

courts. Id. at 299, 109 S.Ct. at 1069 (“The rule announced in Harris v. Reed

assumes that a state court has had the opportunity to address a claim that is

later raised in a federal habeas proceeding.”). Moreover, the presumption

“looks through” unexplained orders to the last reasoned decision. Ylst v.

Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706

(1991).

Where there has been one reasoned state

judgment rejecting a federal claim, later

unexplained orders upholding that judgment or

rejecting the same claim rest upon the same

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 30 of 39
31

ground. If an earlier opinion “fairly appear[s] to

rest primarily upon federal law,” Coleman, 501

U.S., at 740, 111 S.Ct., at 2559, we will presume

that no procedural default has been invoked by a

subsequent unexplained order that leaves the

judgment or its consequences in place. Similarly

where . . . the last reasoned opinion on the claim

explicitly imposes a procedural default, we will

presume that a later decision rejecting the claim

did not silently disregard that bar and consider the

merits.

501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption “may not be applied

in cases in which the state court opinion did not, at a minimum, discuss the

federal grounds at issue.” Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993)

(“Coleman and Ylst lead us to conclude that we may not assume that had the

state court issued an opinion, it would have ignored its own procedural rules

and reached the merits of this case. In fact, the most reasonable assumption is

that had the state court ruled, it would have enforced the procedural bar.”).

Finally, “where a state court has ruled in the alternative, addressing both the

independent state procedural ground and the merits of the federal claim, the

federal court should apply the state procedural bar and decline to reach the

merits of the claim.” Alderman v. Zant, supra, 22 F.3d at 1549.

12. When a petitioner has procedurally defaulted a claim, a federal

court is barred from reaching the merits of that claim unless the petitioner “can

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 31 of 39
32

demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claim[] will

result in a fundamental miscarriage of justice.” Coleman, supra, 501 U.S. at

750, 111 S.Ct. at 2565. The cause and prejudice standard applies “uniformly

to all independent and adequate state procedural defaults.” Id. at 750-751, 111

S.Ct. at 2565.

In procedural default cases, the cause

standard requires the petitioner to show that

“some objective factor external to the defense

impeded counsel's efforts” to raise the claim in

state court. (citation omitted). Objective factors

that constitute cause include “‘interference by

officials’” that makes compliance with the state's

procedural rule impracticable, and “a showing

that the factual or legal basis for a claim was not

reasonably available to counsel.” (citation

omitted). In addition, constitutionally

“[i]neffective assistance of counsel . . . is cause.”

(citation omitted). Attorney error short of

ineffective assistance of counsel, however, does

not constitute cause and will not excuse a

procedural default. (citation omitted). Once the

petitioner has established cause, he must show

“‘actual prejudice’ resulting from the errors of

which he complains.” (citation omitted). 

 

 

Federal courts retain the authority to issue

the writ of habeas corpus in a further, narrow

class of cases despite a petitioner’s failure to

show cause for a procedural default. These are

extraordinary instances when a constitutional

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 32 of 39
33

violation probably has caused the conviction of

one innocent of the crime. We have described

this class of cases as implicating a fundamental

miscarriage of justice. (citation omitted).

McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d

517 (1991).

13. In his supplemental answer, respondent asserts that petitioner’s

two claims raised in the instant petition are procedurally defaulted under

O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)

(“[I]n order to exhaust state remedies as to a federal constitutional issue a

prisoner is required to file a petition for discretionary review in the state’s

highest court raising that issue, if discretionary review is part of the appellate

procedure in the state.”) due to petitioner’s admitted failure to raise these

claims in the state courts of Alabama (see Doc. 1, at 5-7). 

14. It is clear to the undersigned that Jones has procedurally

defaulted all claims raised in the petition, save for her claim of actual

innocence, for the reason previously identified. More specifically, petitioner

did not raise either of her claims on direct review nor did she raise them on

collateral review in a Rule 32 petition. Cf. Smith v. Jones, 256 F.3d 1135, 1140

(11th Cir. 2001) (“[T]here is no doubt that Alabama’s discretionary review

procedures bring Alabama prisoner habeas petitions within the scope of the

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 33 of 39
34

Boerckel rule.”), cert. denied, 534 U.S. 1136, 122 S.Ct. 1081, 151 L.Ed.2d 982

(2002). Thus, this Court is procedurally defaulted from reaching the merits of

these claims pursuant to Boerckel, supra, 526 U.S. at 848, 119 S.Ct. at 1734

(a prisoner who fails to present his claims in a petition for discretionary review

to a state court of last resort has not properly presented unless claims and,

therefore, has procedurally defaulted same), unless petitioner can establish that

the cause and prejudice or fundamental miscarriage of justice exception apply,

Smith, supra, 256 F.3d at 1138. 

 15. Petitioner attempts to establish cause and prejudice by arguing

that her appointed attorney abandoned her direct appeal after the Alabama

Court of Criminal Appeals entered its decision affirming her conviction and

sentence. (See Doc. 29) While this Court might find this argument appealing

had petitioner raised in the instant case any of the arguments presented on

direct appeal to the Alabama Court of Criminal Appeals, this argument fails

in this instance since Jones attempts to raise in this federal petition claims she

never attempted to present to the state courts of Alabama. Accordingly,

petitioner has not established cause or prejudice for failing to raise the claims

she attempts to raise in the instant to the state courts of Alabama. 

16. The fundamental miscarriage of justice/actual innocence

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 34 of 39
35

exception does not apply in this case because petitioner has not satisfied the

standard set forth in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91

L.Ed.2d 397 (1986). That standard requires Jones to show that “a

constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Id. at 496, 106 S.Ct. at 2649-2650. Again, as previously

stated, to be credible, a claim of actual innocence “requires petitioner to

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, supra,

513 U.S. at 324, 115 S.Ct. at 865; see also id. at 327, 115 S.Ct. at 867 (“To

establish the requisite probability, the petitioner must show that it is more

likely than not that no reasonable juror would have convicted him in the light

of the new evidence.”). As already established, Jones has not come forward

with any new reliable evidence not presented at trial which establishes her

actual innocence and thereby undermines the jury’s determination that she was

guilty of stalking her divorce attorney, Jerry Pilgrim. Accordingly, this case is

not one of those rare cases in which the actual innocence exception is

applicable. 

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

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 35 of 39
36

undersigned recommends that a certificate of appealability 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 certificate of appealability. 28 U.S.C. §

2253(c)(1). 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. § 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, 120 S.Ct. 1595, 1604, 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 ‘sho[w] that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 36 of 39
37

manner or that the issues presented were “adequate to deserve encouragement

to proceed further.”’”). Inasmuch as equitable tolling is an extraordinary

remedy which the Eleventh Circuit has rarely granted, see Diaz, supra, 362

F.3d at 701 (“[T]his court has rejected most claims for equitable tolling.”), and

petitioner has clearly defaulted the claims she wishes this Court to address

pursuant to O’Sullivan v. Boerckel, supra, a reasonable jurist could not

conclude either that this Court is in error in dismissing the instant petition or

that Jones should be allowed to proceed further, Slack, supra, 529 U.S. at 484,

120 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.”). 

CONCLUSION

The Magistrate Judge recommends that Beverly Jo Jones’ petition for

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

time-barred under § 2244(d). Alternatively, petitioner is not entitled to any

relief in this Court because she has procedurally defaulted all claims. Jones is

not entitled to a certificate of appealability and, therefore, she is not entitled

to appeal in forma pauperis.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 37 of 39
38

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and recommendation

of the Magistrate Judge.

DONE this the 15th day of April, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 38 of 39
13 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

39

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 (14) 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 days13 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 case 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.

Case 1:09-cv-00600-WS-C Document 32 Filed 04/16/10 Page 39 of 39