IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JEFFREY TAYLOR, )

)

Petitioner, )

)

v. ) Civil Action No. 14-00156-WS-N

)

WANDA LIGHTNER, )

)

Respondent. )

REPORT AND RECOMMENDATION

Pending before this Court are Petitioner Jeffrey Taylor’s Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 4), Respondent Cynthia Wheeler’s 

Answer (Doc. 12), and Petitioner’s Responses to two Orders of this Court (Docs. 6 

and 14). This matter is now ripe for the Court’s consideration and has been referred 

to the undersigned United States Magistrate Judge for Report and Recommendation 

pursuant to 28 U.S.C. § 636(b)(1)(B), Rule 8(b) of the Rules Governing Section 2254

Cases, and Local Rule 72.2(c)(4). For the reasons explained herein, it is 

RECOMMENDED that Petitioner’s Petition (Doc. 4) be DENIED and that the 

Court find he is not entitled to a certificate of appealability and therefore is not 

entitled to appeal in forma pauperis.

I. Underlying State Proceedings

On April 17, 2007, Petitioner pled guilty in Elmore County Circuit Court to 

three counts of third-degree burglary, two counts of unlawful breaking and entering 

of a vehicle, one count of second-degree burglary, one count of third-degree burglary, 

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and one count of (misdemeanor) third degree theft of property. Doc. 12-2 at 23-24. He 

was sentenced to a 20-year prison term for each of the seven felony convictions and a 

1-year term for the misdemeanor conviction, all to be served concurrently. Id. at 24. 

He did not appeal his conviction. Id. The 42-day period for appeal expired on May 29, 

2007. Id.; see ALA. R. APP. P. 4(b)(1).

Nearly two years later, on March 22, 2009, Petitioner sought post-conviction 

relief in the state courts under ALA. R. CRIM. P. 32, attacking his conviction on 

several grounds, including claims that his plea was involuntary, that the trial court 

lacked jurisdiction, and that his counsel gave ineffective assistance, and that the 

prosecution failed to disclose favorable evidence to him. Doc. 12-2 at 24-28. The Rule 

32 Petition was dismissed by the trial court as time-barred. Doc. 12-2 at 33. On April 

23, 2010, the Alabama Court of Criminal Appeals affirmed the ruling and entered a 

certificate of judgment. Docs. 12-1; 12-5 at 5. Approximately four years later, on 

April 16, 2014, Petitioner filed the instant petition seeking federal habeas corpus 

relief from his state conviction. See Doc. 4.

II. Collateral Attack

A. Period of Limitations

Petitioner alleges that his conviction should be vacated or his sentence 

reduced because of an involuntary plea and because of “wrongful convictions.” Doc. 1 

at 6-7. However, his claim is time-barred under the Anti-Terrorism and Effective 

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Death Penalty Act of 1996 (AEDPA) that amended 28 U.S.C. § 2244.1 Specifically, § 

2244 now states in pertinent part that:

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.

28 U.S.C. § 2244(d)(1). 

Since this case does not involve an impediment to filing an application, a new 

constitutional right, or recently discovered facts, the latest date of the four iterated 

for the running of the limitation period is that on which the judgment against 

petitioner became final. See 28 U.S.C. § 2244(d)(1)(A). Because Petitioner did not 

seek direct appeal from his conviction or sentence in state court, his conviction 

became final for the purposes of seeking a § 2254 writ when the time expired for him 

to seek such review. Id. accord Jones v. Secretary, Fla. Dept. of Corrections, 499 Fed. 

Appx. 945, 950 (11th Cir. 2012). Since the time-period for appealing a circuit court 

 1 The AEDPA became effective on April 24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 

(11th Cir.1998).

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conviction in Alabama is 42 days (ALA. R. APP. P. 4(b)(1)), the one-year statute of 

limitations for filing a § 2254 petition began to run on May 29, 2007. See Doc. 1-1 at 

26, 48; see also Jones, 499 Fed. Appx. at 950 accord Kearse v. Secretary, Fla. Dept. of 

Corrections, 736 F.3d 1359, 1360 (11th Cir. 2013).

B. Statutory Tolling

The running of the limitations period is tolled by statute while “a properly 

filed application for State post-conviction or other collateral review with respect to 

the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). However, 

Petitioner’s Rule 32 petition was not filed in state court until March 22, 2009, well 

after the one-year limitations period had already expired.2 See Doc. 12 at 3; Doc. 

12-2 at 24. Thus, the Rule 32 petition does not act to toll the limitations period. See

Lugo v. Secretary, Fla. Dept. of Corrections, 750 F.3d 1198, 1208 (11th Cir. 2014) 

(stating that where a state petition for post-collateral review is filed after the 

limitations period has expired, it does “not operate to toll the limitations period 

under § 2244(d)(2) because no period remain[s] to be tolled.”). Petitioner did not file 

this action until April 16, 2014, long after the limitations period imposed by 28 

U.S.C. § 2244(d)(1) had run. Thus, he is not entitled to statutory tolling of the 

limitations period adequate to make his claim timely. 

C. Equitable Tolling

 2 Taylor’s time for seeking federal habeas relief expired on May 28, 2008. Taylor was sentence on 

April 17, 2007 (see Doc. 12-2 at 24), and his time for appeal lapsed 42 days later on May 29, 2007. See

ALA. R. APP. P. 4(b)(1). A petition for habeas corpus review must be filed within one year of “the date 

on which the judgment became final by the conclusion of direct review or the expirate of the time for 

seeking such review. 28 U.S.C. § 2244(d)(1).

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The Petitioner is also not entitled to equitable tolling, despite his allegation of 

mental incompetency during and following trial. See Doc. 4 at 12. Equitable tolling of 

the AEDPA's one-year limitations period is only “appropriate when a prisoner 

demonstrates both extraordinary circumstances that prevented him from timely 

filing his motion to vacate and due diligence.” Manders v. United States, 2012 WL 

72737, at *4 (M.D.Fla. Jan. 10, 2012) (citations omitted); accord Foley v. United 

States, 420 Fed. App'x 941, 942 (11th Cir. 2011) (per curiam) (“[E]quitable tolling ‘is 

available only if a [prisoner] establishes both extraordinary circumstances and due 

diligence.’ ” (quoting Diaz v. Secretary of Dep't of Corr., 362 F.3d 698, 702 (11th Cir.

2004) (emphasis in Diaz ))); Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562 

(2010) (“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has 

been pursuing his rights diligently, and (2) that some extraordinary circumstance 

stood in his way.” (citation and internal quotation marks omitted)). Specifically, “[i]n 

the § 2255 context, equitable tolling ‘is appropriate when a movant untimely files 

because of extraordinary circumstances that are both beyond his control and 

unavoidable even with diligence.’ . . . ‘The “extraordinary circumstances” standard 

applied in this circuit focuses on the circumstances surrounding the late filing of the 

habeas petition, rather than the circumstances surrounding the underlying 

conviction.’ . . . The petitioner has the burden of proving entitlement to equitable 

tolling by showing that ‘extraordinary circumstances that were both beyond his 

control and unavoidable even with diligence’ prevented filing the petition on time.”

Jones v. United States, 304 F.3d 1035, 1039–40 (11th Cir. 2002) (emphasis in 

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original), cert. denied,538 U.S. 947 (2003); see also Johnson v. United States, 340 

F.3d 1219, 1226 (11th Cir.2003) (“We have held that equitable tolling is appropriate 

when a prisoner's § 2255 petition is untimely because of extraordinary 

circumstances that are both beyond his control and unavoidable even with diligence .

. . . We have emphasized, however, that equitable tolling applies only in truly 

extraordinary circumstances . . . . Appellant bears the burden of establishing that he 

is entitled to this extraordinary relief.”), aff'd, 544 U.S. 295 (2005); Brown v. Barrow, 

512 F.3d 1304, 1307 (11th Cir.2008) (noting that the Eleventh Circuit “has held that 

an inmate bears a strong burden to show specific facts to support his claim of 

extraordinary circumstances and due diligence.” (citation omitted)); Diaz, 362 F.3d 

at 700–01 (“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.”); Steed v. Head, 219 F.3d 

1298, 1300 (11th Cir.2000) (“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.’ ”); cf. Sandvik v. United States, 177 F.3d 1269, 

1271 (11th Cir. 1999) (“We [ ] conclude that in the proper case § 2255's period of 

limitations may be equitably tolled. This is not, however, a proper case. Equitable 

tolling is appropriate when a movant untimely files because of extraordinary 

circumstances that are both beyond his control and unavoidable even with 

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diligence.” (citations omitted)).

The Petitioner’s only allegation concerning his mental incompetency is that 

the period of limitations should be tolled “[b]ecause I was incompetency at trial and 

incarcerated and still incompetency to do this petition.” (sic) Doc. 4 at 12. Petitioner 

offers no evidence as to his alleged incompetency and makes no allegation as to the 

causal connection between his alleged incompetency and his ability to bring this 

petition.

In this Circuit, significant mental health impairments may indeed be 

considered extraordinary circumstances in a proper case.

In Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009), the Eleventh Circuit held 

that a person with a substantial mental illness, such as mental retardation, 

may be granted equitable tolling of the one-year period for filing a federal 

habeas petition. In order to avail oneself of equitable tolling, a prisoner must 

present sufficient evidence to create a factual issue as to whether there is a 

casual connection between the prisoner's mental incapacity and his ability to 

timely file a habeas petition. Id. at 1308; see also Mendez v. United States, 

2011 WL 5555876, at *6–7 (M.D.Fla. Oct. 27, 2011).

Manders, 2012 WL 72737, at *4 (emphasis added and citation modified).

In Mendez, the court discussed Hunter's causal connection requirement in 

light of the Eleventh Circuit's earlier decision in Lawrence v. Florida, 421 F.3d 1221 

(11th Cir.2005), aff'd 549 U.S. 327 (2007). See 2011 WL 5555876, at *6–7. In 

Lawrence, the petitioner “contend[ed] that his mental incapacity prevented him from 

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timely filing and justifie[d] the invocation of equitable tolling.” 421 F.3d at 1226. The 

Eleventh Circuit found, however, that Lawrence could not “establish a causal 

connection between his alleged mental incapacity and his ability to file a timely 

petition.” Id.

Lawrence admits in his appellate brief that medical reports state that his full 

scale IQ is 81, and he admits that he did not make the assertion that he was 

mentally incompetent per se. Instead, Lawrence claims that his initial 

pleading made it clear that he has suffered from mental impairments his 

entire life. However, this contention, without more, is insufficient to justify 

equitable tolling.

Id. at 1226–27 (collecting authority)3; see also Cutts v. Jones, 2009 WL 230091, at *7 

(M .D.Ala. Jan. 30, 2009).4 In Mendez, similarly, neither the petitioner's PSI nor his 

 3 In affirming the Eleventh Circuit's decision, Justice Thomas, writing for the Supreme Court's 

five-member majority, quickly dispatched Lawrence's equitable tolling mental incapacity argument: 

“Fourth, Lawrence argues that his mental incapacity justifies his reliance upon counsel and entitles 

him to equitable tolling. Even assuming this argument could be legally credited, Lawrence has made 

no factual showing of mental incapacity. In sum, Lawrence has fallen far short of showing 

‘extraordinary circumstances' necessary to support equitable tolling.” 549 U.S. at 337.

4 In Cutts, Magistrate Judge Moorer's recommendation, adopted by Judge Thompson, provides the 

following lengthy string cite, which illustrates the importance of establishing a causal connection 

between the alleged mental impairment and the ability to timely pursue a collateral attack:

Cutts' reference to his mental impairment as an implicit basis for equitable tolling entitles Cutts 

to no relief as he has failed to establish a causal connection between the alleged mental 

impairment and his ability to file a timely federal habeas petition. Lawrence v. Florida, 421 F.3d 

1221, 1226 (11th Cir.2005); Bilbrey v. Douglas, 124 Fed. App'x 971, 973 (6th Cir.2005) (equitable 

tolling not applicable because petitioner “failed to establish a causal connection between her 

mental condition and her ability to file a timely petition”); Green v. Hinsley, 116 Fed. App'x 749, 

751 (7th Cir.2004) (equitable tolling did not apply because petitioner failed to submit evidence of 

how his low IQ would render him incompetent or prevent him from timely filing his petition); 

Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir.2001) (petitioner's mere allegations of 

incompetency at the time of his guilty pleas did not suffice to warrant equitable tolling of the 

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medical records, “which indicate[d] that he may have suffered from mental 

impairments his entire life,” were “sufficient to justify equitable tolling.” See 2011 

WL 5555876, at *6. In contrast to Hunter, where “the court found that the doctor's 

report ‘strongly suggests that Hunter's well-documented, irreversible mental 

retardation is severe enough that Hunter, by himself, is not able to understand and 

comply with the AEDPA's filing requirements and deadlines[,]’ ” id. at *7 (quoting 

587 F.3d at 1309 (emphasis added)), Mendez, like the Petitioner here, had “not been 

diagnosed as mentally retarded.” Id.

The Petitioner has also not provided any evidence to show that a significant 

 

limitations period); Lake v. Arnold, 232 F.3d 360, 371 (3rd Cir.2000) (mental deficiency, including 

even mental incompetence, standing alone, not sufficient reason to toll limitations period); see 

also Smith v. Newsome, 876 F.2d 1461, 1466 (11th Cir.1989) (where petitioner understood nature 

and consequences of state proceedings and acted throughout in a rational manner, “general 

mental condition” does not excuse failure to act in accordance with applicable procedural rules); 

Farabee v. Johnson, 129 Fed. App'x 799, 804 (4th Cir.2005) (petitioner presented no evidence 

demonstrating “his mental illness interfered with his ability to appreciate his litigation position 

or to make rational decisions concerning the litigation” and, therefore, failed to establish that 

mental illness caused his several procedural defaults); Harris v. McAdory, 334 F.3d 665, 669–70 

(7th Cir.2003) (neither borderline mental retardation nor frontal lobe brain dysfunction sufficient 

to warrant relief from a procedural bar); Ervin v. Delo, 194 F.3d 908, 916 (8th Cir.1999)

(petitioner's “alleged depression could not amount to cause excusing [petitioner's] procedural 

default” where the “alleged depression did not hinder his ability to file a pro se postconviction 

motion.”); Holt v. Bowersox, 191 F.3d 970, 974 (8th Cir.1999) (absent “conclusive showing that 

mental illness interfered with a petitioner's ability to appreciate his ... position and make 

rational decisions regarding his ... case at the time during which he ... should have pursued 

post-conviction relief[,]” mental illness does not excuse procedural default); Cornman v. 

Armontrout, 959 F.2d 727, 729 (8th Cir.1992) (petitioner's below-average intelligence insufficient 

to justify relief from a procedural bar); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir.1988)

(petitioner's diagnosis as a “borderline mental defective” fails to establish cause for excusing a 

procedural default). A petitioner must make a threshold showing of mental incompetence, see 

Calderon v. United States District Court for the Central District of California, 163 F.3d 530, 541 

(9th Cir.1998) (en banc), and demonstrate that the alleged incompetence affected his ability to 

file a timely habeas petition. Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 

618 (3rd Cir .1998). Thus, the mere fact that Cutts may have suffered from some mental 

deficiency, without more, is insufficient to justify equitable tolling. Lawrence, 421 F.3d at 1227.

Id.

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mental disability was what prevented him from filing a timely habeas petition. 

Contra Hunter, 587 F.3d at 1308-10 (in which it was stated that the petitioner had a 

Full Scale IQ score of 59, “at the low-end of the mildly retarded range”; that the 

petitioner's “mental retardation moderately to severely impair[ed] his judgment, 

insight and problem-solving skills, which [made] him unable to function 

independently”; that “he [was] illiterate”; and that “he suffer[ed] from severe 

expressive speech aphasia which [made] it difficult for him to communicate 

intelligibly”); United States v. Sosa, 364 F.3d 507, 513 (4th Cir. 2004) (“As a general 

matter, the federal courts will apply equitable tolling because of a petitioner's 

mental condition only in cases of profound mental incapacity. See, e.g., Grant v. 

McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998) (finding equitable 

tolling based on mental condition to be appropriate “only in exceptional 

circumstances, such as institutionalization or adjudged mental incompetence”)).

Petitioner has presented no evidence in support of this allegation or shown 

any “causal connection” between the alleged mental incapacity and his ability to file 

a timely petition (see Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005)), so 

he has not established that any “extraordinary circumstance” prevented him from 

seeking § 2254 relief. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Brown v. 

Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008). Thus, the petition is barred by the 

AEDPA statute of limitations.

III. Certificate of Appealability

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Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the 

undersigned recommends that a certificate of appealability in this case be denied. 

18 U.S.C. foll. § 2255, 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 

only issue where “the applicant has made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2243(c)(2).

When a habeas petition is dismissed on procedural grounds, such as in the 

instant case, without reaching the merits of any underlying constitutional claim, “a 

COA should issue [only] when the prisoner shows...that jurists of reason would find 

it debatable whether the petition states a valid claim of the denial of a constitutional 

right and that jurists of reason would find it debatable whether the district court 

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 

Miller-EL v. Cockrell, 537 U.S. 322, 336 (2003)(“Under the controlling standard, a 

petitioner must ‘show that reasonable jurists could debate whether (or, for that 

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

the issues presented were ‘adequate to deserve encouragement to proceed further.’ ”).

Under the facts of this case, a reasonable jurist could not conclude either that 

this Court is in error in dismissing the instant petition or that Petitioner should be 

allowed to proceed further. Slack, 529 U.S. at 484 (“Where a plain procedural bar is 

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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.”). 

Accordingly, the undersigned recommends that the court conclude that no 

reasonable jurist could find it debatable whether the Petitioner's petition should be 

dismissed; thus, he is not entitled to a certificate of appealability.

IV. Conclusion

Petitioner has raised several claims in this petition. However, because this 

action was filed so long after his conviction, it is barred by the AEDPA statute of 

limitations. Therefore, it is RECOMMENDED that the Petitioner’s Motion be

DENIED. It is FURTHER RECOMMENDED that the court find that the 

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

entitled to appeal in forma pauperis.

V. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this document, 

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

636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is 

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

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Judge’s report and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 20th day of April 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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