IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HARDY DEVAN TOLBERT, JR., :

AIS 160902,

:

Petitioner,

:

vs. CA 14-0407-WS-C

:

KARLA JONES,

:

Respondent.

REPORT AND RECOMMENDATION

Hardy Devan Tolbert, Jr., 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 sole claim raised by

Tolbert herein.

FINDINGS OF FACT

On April 1, 2009, Tolbert entered a counseled guilty plea to distribution of a 

controlled substance and was sentenced to life imprisonment pursuant to Alabama’s 

Habitual Felony Offender Act. (Compare Doc. 1, at 2 with Doc. 7, at 1.) Sometime 

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thereafter, petitioner filed a notice of appeal (see Doc. 7, at 3); however, Tolbert’s direct 

appeal was dismissed by the Alabama Court of Criminal Appeals due to his failure to 

pay the $100.00 docket fee or provide proof that he “had been granted leave to proceed 

on appeal in forma pauperis or ha[d] a motion pending with the trial court seeking 

leave to proceed on appeal in forma pauperis.” (Doc. 7, Exhibit 1.) A certificate of final 

judgment of affirmance issued on November 24, 2009. (Doc. 7, Exhibit 2; compare id. with 

Doc. 7, Exhibit 1 (“Having this date dismissed this appeal, the Court further orders that 

the certificate of judgment shall issue forthwith.”).) 

Tolbert collaterally attacked his conviction and sentence on March 31, 2010. (See 

Doc. 7, Exhibit 3, at 2.) “In his petition, Tolbert alleged that he was denied the effective 

assistance of counsel due to a conflict of interest by his attorney that adversely affected 

his representation.” (Id.) The Alabama Court of Criminal Appeals affirmed the trial 

court’s denial of Tolbert’s Rule 32 petition by memorandum opinion issued on 

September 16, 2011. Tolbert v. State, 114 So.3d 164 (Ala.Crim.App. 2011) (table). A 

certificate of final judgment of affirmance was entered on October 5, 2011. (Doc. 7, 

Exhibit 4.) 

Tolbert was deemed to have filed his second Rule 32 petition in the Circuit Court 

of Mobile County, Alabama on March 13, 2012. (Doc. 7, Exhibit 5, at 2.) Numerous 

claims were raised by petitioner but only one relevant to the instant petition, as follows: 

“Tolbert argued that neither the State nor the circuit court invoked the Habitual Felony 

Offender Act [] prior to his sentencing, therefore, according to Tolbert, his sentence 

exceeds the sentence allowed for a Class B felony and is illegal.” (Id. at 2.) The trial court 

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determined that this claim was nonjurisdictional and, therefore, subject to the 

“procedural bars of Rule 32.2(c)[] because the petition was untimely filed.” (Id. at 3.) 

The Alabama Court of Criminal Appeals determined that “[t]he circuit court correctly 

found [] Tolbert’s petition [] precluded as untimely under Rule 32.2(c)[]” inasmuch as 

the foregoing claim was a non-jurisdictional claim. (Id.) In addition, the appellate court 

found the claim to be without merit. (Id. at 3-4.) Tolbert’s petition for writ of certiorari 

was denied without opinion on January 10, 2014 (Doc. 7, Exhibit 6) and the certificate of 

final judgment of affirmance was issued that same day (Doc. 7, Exhibit 7).

In his petition filed in this Court on August 26, 2014 (Doc. 1, at 13) Tolbert 

contends that he was denied his constitutional right to due process of law due to the 

State’s failure to properly invoke Alabama’s Habitual Felony Offender Act by 

establishing or offering proof that he had three prior qualifying felony convictions (see 

id. at 14 & 16-18). 

CONCLUSIONS OF LAW

A. Statute of Limitations.

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—

 

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(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). 

Subsections (B), (C), and (D) of § 2244(d)(1) clearly do not apply to petitioner’s 

case and, therefore, the timeliness of Tolbert’s petition must be calculated under § 

2244(d)(1)(A) based upon the date on which his unlawful distribution of a controlled 

substance 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 Tolbert’s conviction became final in 2010.

Section 2244(d)(1)(A) specifically provides that the one-year limitations period 

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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 review[.]” The Alabama Court of 

Criminal Appeals dismissed Tolbert’s appeal by order dated November 24, 2009, Tolbert 

v. State, 64 So.3d 1164 (Ala.Crim.App. 2009), and the certificate of judgment of final 

affirmance was issued that same day (Doc. 7, Exhibit 2). The respondent implicitly 

contends that Tolbert’s one-year limitations period began to run on November 24, 2009 

(Doc. 7, at 6); however, respondent cites no legal authority supporting this proposition 

(see id.) and the undersigned need agree with the United States District Court for the 

Middle District of Florida that “a § 2254 petitioner is entitled to a 90-day period for 

seeking certiorari review in the Supreme Court of the United States from a dismissed 

direct appeal.” Tovar v. Secretary, DOC, 2014 WL 298914, *2 (M.D. Fla. Jan. 28, 2014) 

(discussing cases, including Fifth and Fourth Circuit cases). 

In light of the foregoing, it is clear to the undersigned that petitioner’s one-year 

period of limitations under AEDPA began to run on February 24, 2010 and was tolled 

one month and seven days later on March 31, 2010, when Tolbert filed his first Rule 32 

petition collaterally attacking his conviction and sentence (see Doc. 7, Exhibit 5, at 2). 

Compare 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for 

State post-conviction or other collateral review with respect to the pertinent judgment 

or claim is pending shall not be counted toward any period of limitation under this 

subsection.”) with 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 

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limitation in [subsection (d)].’”). Petitioner’s one-year limitations period began running 

again on October 5, 2011, the date on which the certificate of final judgment of 

affirmance was issued with respect to the denial of his Rule 32 petition (see Doc. 7, 

Exhibit 4), and expired some ten (10) months and twenty-three (23) days later, on or 

about August 12, 2012. Tolbert is unable to take advantage of the tolling provision set 

forth in 28 U.S.C. § 2244(d)(2) on account of the filing of his second Rule 32 petition in 

the Circuit Court of Mobile County, Alabama on March 13, 2012 (see Doc. 7, Exhibit 5, at 

2), inasmuch as his second collateral state petition was not properly filed due to its 

untimeliness (id. at 3). Compare Pace 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.”) with Murphy v. Secretary, Dep’t of Corrections, 279 

Fed.Appx. 877, 878 (11th Cir. My 29, 2008) (finding where denial of a second state 

collateral petition is affirmed both because it was untimely and because it lacked merit, 

as here, the second petition was not “properly filed” for § 2244(d)(2) purposes).1

 1 Even assuming Tolbert’s second Rule 32 petition also tolled his one-year 

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Accordingly, the only avenue by which this Court can consider the merits of Tolbert’s § 

2254 petition is by finding that he is entitled to equitable tolling of AEDPA’s one-year 

limitations period.

In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the 

Supreme Court specifically held, for the first time, that “§ 2244(d) is subject to equitable 

tolling in appropriate cases[,]” id. at 645, 130 S.Ct. at 2560, and reiterated “that 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’ and prevented timely filing.” Id. at 649, 130 S.Ct. at 2562. For its part, the Eleventh 

Circuit has long 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 

 limitations period, another five plus months of that period lapsed before the second petition 

was filed on March 13, 2012, that is, October 5, 2011 through March 13, 2012. This five plus 

months added to the previous one plus month referenced above constitutes six plus months, 

such that the more than seven months that expired between the January 10, 2014 issuance of the 

certificate of judgment of final affirmance on the second Rule 32 petition and the filing of the 

instant petition on August 26, 2014, obviously accounts for more than 12 months. Accordingly, 

Tolbert’s § 2254 petition is untimely.

Given this alternative “mathematical” analysis, petitioner’s apparent argument that his 

second Rule 32 petition did toll the one-year statute of limitations (see Doc. 12, at 1-3) avails him 

of nothing. In other words, petitioner’s one-year limitations period has expired regardless of the 

manner in which the “pie” is cut; even assuming Tolbert’s second Rule 32 petition also tolled 

the one-year limitations period, the instant petition still comes too late as established above.

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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.”). 

The Supreme Court in Holland indicated that “[t]he diligence required for equitable 

tolling purposes is reasonable diligence, not maximum feasible diligence[,]” id. at 653, 

130 S.Ct. at 2565, and gave the following guidance with respect to “extraordinary 

circumstances”:

We have previously held that “a garden variety claim of excusable 

neglect,” such as a simple “miscalculation” that leads a lawyer to miss a 

filing deadline, does not warrant equitable tolling. But the case before us 

does not involve, and we are not considering, a “garden variety claim” of 

attorney negligence. Rather, the facts of this case present far more serious 

instances of attorney misconduct. And, as we have said, although the 

circumstances of a case must be “extraordinary” before equitable tolling 

can be applied, we hold that such circumstances are not limited to those 

that satisfy the test that the Court of Appeals used in this case.

The record facts that we have set forth in Part I of this opinion 

suggest that this case may well be an “extraordinary” instance in which 

petitioner’s attorney’s conduct constituted far more than “garden variety” 

or “excusable neglect.” To be sure, Collins failed to file Holland’s petition 

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on time and appears to have been unaware of the date on which the 

limitations period expired-two facts that, alone, might suggest simple 

negligence. But, in these circumstances, the record facts we have 

elucidated suggest that the failure amounted to more: Here, Collins failed 

to file Holland’s federal petition on time despite Holland’s many letters

that repeatedly emphasized the importance of his doing so. Collins 

apparently did not do the research necessary to find out the proper filing 

date, despite Holland’s letters that went so far as to identify the applicable 

legal rules. Collins failed to inform Holland in a timely manner about the 

crucial fact that the Florida Supreme Court had decided his case, again 

despite Holland’s many pleas for that information. And Collins failed to 

communicate with his client over a period of years, despite various pleas 

from Holland that Collins respond to his letters. 

Id. at 651-652, 130 S.Ct. at 2564. It is also clear that a federal court can consider the merits 

of an untimely § 2254 motion if the petitioner establishes that he is factually innocent of 

the crimes for which he was convicted. See San Martin v. McNeil, 633 F.3d 1257, 1268 

(11th Cir.) (“The actual innocence exception is ‘exceedingly narrow in scope,’ and the 

petitioner must demonstrate that he is factually innocent rather than legally innocent.”), 

cert. denied, U.S. , 132 S.Ct. 158, 181 L.Ed.2d 73 (2011). 

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 burden of establishing entitlement to this 

extraordinary remedy plainly rests with the petitioner[.]’”). Indeed, petitioner nowhere 

makes any equitable tolling argument (compare Doc. 1 with Doc. 12 (no reference to 

extraordinary circumstances and due diligence)) and, therefore, he has failed to 

establish his entitlement to this extraordinary remedy. Spottsville, supra. Accordingly, 

the undersigned concludes that nothing other than Tolbert’s own lack of due diligence 

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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.2

B. Procedural Default Doctrine.

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 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 

 2 As referenced, infra, Tolbert has not demonstrated that he is factually innocent of 

unlawful distribution of a controlled substance.

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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).

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.

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 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.

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

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 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 ground. If an earlier opinion “fairly 

appear[s] to rest primarily upon federal law,” Coleman,[ U.S., at , 

111 S.Ct., at 2559], we will presume that no procedural default has been 

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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.

When a petitioner has procedurally defaulted a claim, a federal court is barred 

from reaching the merits of that claim unless the petitioner “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 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. Objective factors 

that constitute cause include interference by officials that makes 

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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. In addition, constitutionally [i]neffective assistance of counsel is 

cause. Attorney error short of ineffective assistance of counsel, however, 

does not constitute cause and will not excuse a procedural default. Once 

the petitioner has established cause, he must show actual prejudice

resulting from the errors of which he complains. 

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 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. 

McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991)

(internal quotation marks and citations omitted).

In his answer, respondent asserts that petitioner’s due process HFOA claim is

procedurally defaulted in this Court because Alabama’s courts found it barred under 

state procedural rules, namely Ala.R.Crim.P. 32.2(c). 

It is clear to the undersigned that Tolbert has procedurally defaulted his HFOA 

claim based upon the reason previously identified. More specifically, the Mobile 

County Circuit Court and the Alabama Court of Criminal Appeals both found 

petitioner’s HFOA claim procedurally defaulted because it was a non-jurisdictional 

claim and untimely raised under Rule 32.2(c) (see Doc. 7, Exhibit 5, at 3) and it has been 

specifically determined in the Eleventh Circuit that a petitioner’s failure to comply with 

Ala.R.Crim.P. 32.2(c) results in a procedural bar of all claims sought to be raised, see 

Hurth v. Mitchem, 400 F.3d 857, 864 (11th Cir. 2005) (“Our holdings enforcing Alabama’s 

Rule 32.2(c) statute of limitations as a procedural bar in federal habeas proceedings, 

even when the default occurred before that rule was transformed into a jurisdictional 

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one by the Williams decision in 2000, cover a period of a half-dozen years. They begin 

with the Gordon decision in 1994 and run through the Franklin decision in 2000, with the 

Kennedy (1995) and Bailey (1999) decisions in between. Each of those four decisions, 

when read against the prior precedent rule, prevents us from following Moore’s later 

holding that the enforceability of Rule 32.2(c) in federal habeas proceedings depends on 

that rule being jurisdictional in nature at the time of the default. It does not. . . . Having 

rejected Hurth’s proposition that the violation of a rule must actually divest the state 

courts of jurisdiction to decide a claim before the rule will be respected in federal 

habeas proceedings, we reject his contention that his failure to comply with Rule 32.2(c) 

did not procedurally bar his . . . claim.”). 

Petitioner’s reliance upon the dissenting opinion in Maples v. Allen, 586 F.3d 879, 

895-897 (11th Cir. 2009), judgment rev’d, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), does not 

promote his argument that this Court should consider the merits of his HFOA claim. In 

dissent, Judge Barkett set forth his position that Maples’s ineffective assistance of 

counsel claims were not procedurally barred from review since a state rule on which a 

default is based is not “adequate” where it is applied in an arbitrary or unprecedented 

fashion and the rule relied on to bar review of Maples’s claims, “Alabama’s law on 

out-of-time appeals, . . . is not ‘adequate’ pursuant to the Supreme Court’s definition of 

that term.” Id. at 895 & 896. The insurmountable problem for Tolbert, however, is that 

the state rule on which his default is based is not “Alabama’s law on out-of-time 

appeals[;]” instead, the rule on which petitioner’s default is based is Rule 32.2(c),

Alabama’s statute-of-limitations rule, a rule about which the Eleventh Circuit has 

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clearly determined that a petitioner’s failure to comply with results in a procedural bar 

of all claims sought to be raised, see Hurth, supra, 400 F.3d at 864. Petitioner has not 

established that Rule 32.2(c) of the Alabama Rules of Criminal Procedure has been 

applied in an arbitrary or unprecedented fashion (see Doc. 12) and, therefore, his 

conclusory suggestion that the rule has been applied in such fashion is unpersuasive.

Moreover, the fundamental miscarriage of justice/actual innocence 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 Tolbert 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. 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.”). Tolbert has not come forward with 

any new reliable evidence which establishes his actual innocence of unlawful 

distribution of a controlled substance. (See Doc. 12.) Accordingly, this case is not one of 

those rare cases in which the actual innocence exception is applicable. 

C. Certificate of Appealability. 

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

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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 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 defaulted the claim he wishes this Court to address, see Hurth, supra, a reasonable 

jurist could not conclude either that this Court is in error in dismissing the instant 

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petition or that Tolbert 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.”). 

Rule 11(a) further provides: “Before entering the final order, the court may direct 

the parties to submit arguments on whether a certificate should issue.” If there is an 

objection to this recommendation by either party, that party may bring this argument to 

the attention of the district judge in the objections permitted to this report and 

recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit 

order denying petitioner’s motions for a COA and to appeal IFP in a case in which this 

Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 

3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report & 

recommendation adopted by 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 

2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report 

& recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 

5, 2010).

CONCLUSION

The Magistrate Judge recommends that Hardy Devan Tolbert, Jr.’s 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 he has procedurally defaulted his HFOA claim due to his failure to timely raise 

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this claim in state court. See Hurth, supra. Tolbert is not entitled to a certificate of

appealability and, therefore, he is not entitled to appeal in forma pauperis.

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. The parties should note that under Eleventh Circuit precedent, 

“the failure to object limits the scope of [] appellate review to plain error review of the 

magistrate judge’s factual findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013) (emphasis in original). In order to be specific, an objection must identify the 

specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the Magistrate Judge’s report and recommendation

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the Magistrate Judge is not specific.

DONE this the 21st day of January, 2015.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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