IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RONNIE ODELL PARKER, :

AIS 162167,

:

Petitioner,

:

vs. CA 10-0016-WS-C

:

LOUIS BOYD,

:

Respondent.

REPORT AND RECOMMENDATION

Ronnie Odell Parker, 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 72.1(c). 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).

FINDINGS OF FACT

1. According to the allegations gleaned from the petition for writ

of habeas corpus filed January 11, 2010, Parker entered a guilty plea to

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 1 of 12
2

larceny in the Circuit Court of Clarke County, Alabama on October 14, 1976

and was sentenced to a one-year term of imprisonment. (Doc. 1, at 1-2) 

2. Parker did not appeal his conviction or sentence nor did he

collaterally attack same until 2007. (See id. at 1-3) Petitioner’s collateral

attack, not surprisingly, proved unsuccessful. (See id. at 3-5) 

CONCLUSIONS OF LAW

1. A district court has the power under Rule 4 of the Rules

Governing Section 2254 Cases “to examine and dismiss frivolous habeas

petitions prior to any answer or other pleading by the state.” Kiser v. Johnson,

163 F.3d 326, 328 (5th Cir. 1999). Rule 4 provides, in pertinent part, that “[i]f

it plainly appears from the petition and any attached exhibits that the petitioner

is not entitled to relief in the district court, the judge must dismiss the petition

and direct the clerk to notify the petitioner.” 28 U.S.C. foll. § 2254, Rule 4.

2. 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). 

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 2 of 12
3

(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 

 

(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).

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

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

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

larceny conviction became final. See Jackson v. Secretary for the Dept. of

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 3 of 12
4

Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002) (“Because Jackson did not

assert that a government-created impediment to his filing existed, that he based

his claims on a right newly recognized by the Supreme Court, or that the facts

supporting his claims could not have been discovered through due diligence

before the filing of this petition, the statute of limitations must be measured

from the remaining trigger, which is the date on which his 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 applicable in this case since Parker’s conviction became final, on

or about November 25, 1976, when his appeal period expired. Rule 4(a),

Ala.R.App.P.; Symanowski v. State, 606 So.2d 171 (Ala. Crim. App. 1992);

see Bridges v. Johnson, 284 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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 4 of 12
5

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. 1144, 122 S.Ct. 1101, 151 L.Ed.2d 997

(2002). Accordingly, Parker’s limitations period commenced on April 24,

1996 and expired on April 23, 1997, see Guenther, supra, 173 F.3d at 1331,

more than twelve years before he filed the instant § 2254 application.

4. Parker 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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 5 of 12
6

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 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 he filed no state collateral attacks on his

conviction and sentence during his one-year limitations period and his 2007

collateral attack certainly did not toll his limitations period. See 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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 6 of 12
7

period remaining to be tolled.”), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148

L.Ed.2d 454 (2000); Singleton v. Upton, 2008 WL 410367, *1 (S.D. Ga. 2008)

(“[A] state habeas petition filed after the one-year AEDPA statute of

limitations expires cannot toll the statute of limitations because there is no time

left to toll.”). In fact, petitioner makes no argument that § 2244(d)(2) is

applicable in this case. (See Doc. 1, at 13)

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

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”

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 7 of 12
8

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

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 he 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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 8 of 12
1 Instead, he simply argues that he was illegally convicted and falsely imprisoned

on a plea of guilty to larceny. (Doc. 1, at 13)

9

burden of establishing entitlement to this extraordinary remedy plainly rests

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

the one-year limitations period.1

 It is apparent to the undersigned that nothing

other than petitioner’s own lack of due diligence is responsible for the

untimeliness of the filing of the instant petition. This is simply not one of those

rare cases in which principles of equitable tolling can save petitioner from

AEDPA’s one-year limitations period.

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

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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 9 of 12
10

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

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

to proceed further.”’”). Inasmuch as a district court can raise sua sponte the

AEDPA statute of limitations, Jackson, supra, 292 F.3d at 1349, within the

context of Rule 4, Johnson v. Chase, 2006 WL 2949442, *1 (S.D. Ga. 2006)

(“Federal district courts are empowered pursuant to Rule 4 to raise the

AEDPA’s statute of limitation sua sponte and dismiss those actions that are

time barred.”), a reasonable jurist could not conclude either that this Court is

in error in dismissing the instant petition or that Parker 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

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 10 of 12
11

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 Ronnie Odell Parker’s petition

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

time barred under the Anti-Terrorism and Effective Death Penalty Act’s oneyear limitations provision contained in 28 U.S.C. § 2244(d). Petitioner is not

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

appeal in forma pauperis.

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 21st day of January, 2010.

 s/WILLIAM E.CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 11 of 12
2 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). 

12

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 days2

 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 1:10-cv-00016-WS-C Document 2 Filed 01/21/10 Page 12 of 12