IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

PHILIP WAYNE TOMLIN, )

)

)

)

)

) 

)

)

)

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Petitioner,

v. Civil Action No. 10-00120-CG-B

TONY PATTERSON,

Respondent.

ORDER

After due and proper consideration of all portions of this file deemed relevant 

to the issue raised, and a de novo determination of those portions of the 

recommendation to which objection is made, the Report and Recommendation of the 

Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) is ADOPTED as the opinion 

of this Court, with the following additional discussion

DISCUSSION

The Petitioner Phillip Wayne Tomlin’s (“Tomlin”) objection fails to raise any 

issue not previously addressed in the Magistrate’s Report and Recommendation. 

Rather, Tomlin merely rehashes and expands upon arguments previously made. 

The only noteworthy deviation from Tomlin’s previous arguments is with regard to

claim twenty-nine, in which Tomlin claims the trial court erred in its instruction to

the jury on the statutory elements of the capital offense with which he was charged.

The Magistrate Judge recommended that Tomlin’s claim be dismissed as 

procedurally defaulted because the Rule 32 post-conviction petition raising the issue 

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was not filed in state court within one year of the issuance of the certificate of 

judgment as required by Alabama Rule of Criminal Procedure 32.2(c).1 Tomlin 

objects to the Magistrate Judge’s recommendation to dismiss the claim as 

procedurally defaulted arguing that he can establish cause for his untimeliness in 

raising the claim and actual prejudice resulting from the default. 

Section 2254(b)(1) provides that a prisoner in state custody shall not be 

granted a writ of habeas corpus unless the prisoner “has exhausted the remedies 

available in the courts of the State.” 28 U.S.C. § 2254(b)(1) (2006). “In other words, 

the state prisoner must give the state courts an opportunity to act on his claims 

before he presents those claims to a federal court in a habeas petition.” O’Sullivan 

v. Boerckel, 526 U.S. 838, 842 (1999). A state prisoner’s failure to present his 

claims to the state courts in a timely and proper manner results in a procedural 

default of those claims. Id. at 848. “In all cases in which a state prisoner has 

defaulted his federal claims in state court pursuant to an independent and adequate 

state procedural rule, federal habeas review of the claim is barred unless the 

prisoner can 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 

 1 Alabama Rule of Criminal Procedure 32.2(c) provides in pertinent part: 

Subject to further provisions hereinafter set out in this section, the 

court shall not entertain any petition for relief from a conviction or sentence 

on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) 

In the case of a conviction appealed to the Court of Criminal Appeals, within 

one (1) year after the issuance of the certificate of judgment by the Court of 

Criminal Appeals under Rule 41, Ala.R.App.P...

Ala.R.Crim.P. 32.2(c) (2002).

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claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 

501 U.S. 722, 750 (1991). In the report and recommendation, the Magistrate Judge 

explains: 

“Cause” for a procedural default exists if “the prisoner can show 

that some objective factor external to the defense impeded counsel’s 

efforts to comply with the State’s procedural rule’” or that the 

procedural default was the result of ineffective assistance of counsel. 

Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish “prejudice,” 

the prisoner additionally must show “not merely that the errors at his 

trial created a possibility of prejudice, but that they worked to his 

actual and substantial disadvantage, infecting his entire trial with 

error of constitutional dimensions.” United States v. Frady, 456 U.S. 

152, 170 (1982). (emphasis in original). In the absence of a showing of 

cause and prejudice, the Court may yet consider a procedurally 

defaulted claim if a “fundamental miscarriage of justice” has “probably 

resulted in the conviction of one who is actually innocent.” Smith v. 

Murray, 477 U.S. 527, 537-38 (1986) (citations omitted). 

(Doc. 24 at 179-180). 

As evidence of cause, Tomlin argues that the Alabama Court of Criminal 

Appeals should not have issued the certificate of judgment while his petition for 

writ of certiorari was pending in the United States Supreme Court. Tomlin relies 

on Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681 (2009), which held that 

“[w]here a state court grants a criminal defendant the right to file an out-of-time 

direct appeal during state collateral review, but before the defendant has first 

sought habeas relief, the judgment is not yet ‘final’” so as to trigger the running of 

the one-year limitation period for filing federal habeas review until the conclusion of 

the out-of-time direct appeal or the expiration of the time for seeking certiorari 

review of that appeal. Id., at 129 S. Ct. 681, 685-686. The holding in this case 

applies to the commencement of the one-year period for bringing a federal habeas 

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petition, not a Rule 32 post-conviction petition in state court. In the instant case, 

the Magistrate Judge recommended that the claim be dismissed as procedurally 

defaulted because Tomlin’s Rule 32 post-conviction petition raising the issue was 

not filed in state court “within one year after the issuance of the certificate of 

judgment by the Court of Criminal Appeals under Rule 41, A.R.App.P...” as 

required by Rule 32.2(c). See Ala.R.Crim.P. 32.2(c).

The Alabama courts consistently have ruled that the triggering date 

for the running of Rule 32.2(c) time limit is the date the Alabama 

Court of Criminal Appeals issues a certificate of judgment, except that 

a timely petition for certiorari in the Alabama Supreme Court will stay 

the effect of the certificate of judgment until the certiorari is resolved. 

See Thomas v. State, 893 So.2d 583 (Ala.Crim.App.2002); Wesley v. 

State, 706 So.2d 855 (Ala.Crim.App. 1997). The reference in Rule 41 of 

the Alabama Rules of Appellate Procedure to certiorari in the 

“Supreme Court” necessarily means the Alabama Supreme Court, not 

the United States Supreme Court. Rule 1 of the Alabama Rules of 

Appellate Procedure defines the scope of the rules as governing appeals 

to “the Supreme Court, the Court of Civil Appeals, and the Court of 

Criminal Appeals,” all of which are clearly intended to be a reference 

to the state appellate courts, as Alabama has no authority to 

promulgate rules governing appeals in the United States Supreme 

Court. 

Kuenzel v. Allen, 880 F.Supp.2d 1162, 1168 n. 4 (N.D. Ala. 2009).

Thus, under Alabama law, the Rule 32.2(c) time limit begins to run on the 

date the Alabama Court of Criminal Appeals issues its certificate of judgment, even 

if the United States Supreme Court denies certiorari on a later date.

After a long and complicated procedural history, Tomlin was convicted of 

capital murder and sentenced to life imprisonment without the possibility of parole. 

See Tomlin v. State, 908 So.2d 290 (Ala. Crim. App. 2004). The Alabama Court of 

Criminal Appeals affirmed Tomlin’s conviction and sentence on August 27, 2004. 

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The Alabama Supreme Court denied Tomlin’s petition for writ of certiorari on 

March 18, 2005, and on the same day, the Alabama Court of Criminal Appeals 

issued a Certificate of Judgment. On January 9, 2006, the United States Supreme 

Court denied Tomlin’s petition for writ of certiorari. See Tomlin v. Alabama, 546 

U.S. 1089 (2006). Tomlin raised this claim in his Rule 32 post-conviction petition in 

state court on January 3, 2007, but the circuit court dismissed the claim because it 

was not filed before the one-year limitation period under Rule 32.2(c) expired on 

March 18, 2006.2 The Alabama Court of Appeals affirmed this ruling. (Doc. 12-10). 

Tomlin has not established cause of why he did not file his claim within the time 

limitation mandated by Rule 32.2 by demonstrating an objective external factor 

that interfered with his ability to comply with the rule or ineffective assistance of 

counsel. 

Because Tomlin has not demonstrated the first prong of the cause or actual 

prejudice exception, the court will only consider the procedurally defaulted claim if 

not doing so would result in a fundamental miscarriage of justice. There is no 

evidence in this case that a miscarriage of justice probably resulted in the conviction 

of one who is actually innocent. Thus, dismissal of that claim as procedurally 

defaulted is appropriate. 

CONCLUSION

It is ORDERED that habeas corpus petition filed by Philip Wayne Tomlin is 

hereby DENIED. The court further finds that the Petitioner is not entitled to 

 2 (Doc. 12-4 at 13, 18-25). The circuit court found that three of the five claims raised in 

Tomlin’s Rule 32 petition were time barred and two were without merit. (Doc. 12-10 at 1.2).

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issuance of a Certificate of Appealability.

DONE and ORDERED this 7th day of August, 2013.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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