1

AEDPA directs that a presumption of correctness be afforded factual findings of state

courts, “which may be rebutted only by clear and convincing evidence.” Bui v. Haley, 321 F.3d

1304, 1312 (11th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1)). “This presumption of correctness

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BILL KEMP (AIS # 090231), :

Petitioner, :

v. : CIVIL ACTION NO. 08-00745-WS-N

BILLY MITCHEM, :

Respondent. :

REPORT AND RECOMMENDATION

This action was referred for report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. 

Petitioner, Bill Kemp, a state prisoner in the custody of Respondent, has petitioned this Court for

federal habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging the validity of his 1985

conviction in the Circuit Court of Clarke County, Alabama, for first degree sodomy, for which

he was sentenced to life imprisonment. (Doc. 5 at 24, 26, 31). 

Having carefully considered Petitioner’s petition and amended response, Respondent’s

answer, and the exhibits and record filed herein, the undersigned is satisfied that Petitioner’s

petition is untimely. Therefore, it is recommended that Petitioner’s habeas petition be dismissed

as time barred and that judgment be entered in favor of Respondent, Billy Mitchem, and against

Petitioner, Bill Kemp, pursuant to 28 U.S.C. § 2244(d). 

FINDINGS OF FACT AND PROCEEDINGS

The Alabama Court of Criminal Appeals found the facts of this case to be as follows:1

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 1 of 17
applies equally to factual determinations made by state trial and appellate courts.” Id. (citing

Sumner v. Mata, 449 U.S. 539, 547 (1981)). 

2

Appellant Kemp was found guilty of sodomy in the first degree for

performing oral sex on a thirteen-year-old boy and was sentenced

to life imprisonment. He raises three issues on appeal.

The state’s evidence indicated that during a school recess the

13-year-old victim was accosted by the appellant, who asked him

for help. The boy had met the appellant at a video arcade a few

months earlier. The boy left with the appellant and they began

walking towards the appellant’s trailer. On the way, the appellant

pulled a knife and menaced the boy with it. Upon arriving at the

trailer, the appellant forced the boy inside. He then gave the boy

some “home brew” and showed him some pornographic

magazines. With the knife in his hands, the appellant then forced

the boy back into a bedroom and made him remove his clothes. 

The appellant then removed his own clothes and forced the boy to

lie down beside him. The victim testified that at this time he was

not sure where the knife was. The appellant then performed oral

sex upon the boy and told the boy that if he tried to run away he

would kill him. They both dressed and went back into the living

room of the trailer. The appellant again had the knife in his hand. 

Soon thereafter he forced the boy back into the bedroom, where he

again performed oral sex upon him. When they next returned to

the living room, appellant Kemp threatened to stab the boy if he

tried to leave. He stabbed the sofa arm with the knife to

demonstrate what he might do to the victim. The victim testified

he was compelled to accompany Kemp, first to the house of an

acquaintance, then in the direction of a hospital. On the way, a

police patrol car drove by and the victim, seeing it, ran from Kemp

and jumped into the patrol car. He related to the officer enough of

what had happened for the officer to arrest the appellant. After the

appellant was read his rights, the officer asked the appellant if they

could go into his trailer. The appellant consented and gave the

officer the keys to the trailer. The officer then went to the trailer

and searched the trailer, where he found the knife and other

evidence which tended to corroborate the boy’s recitation of the

facts.

Kemp v. State, 516 So. 2d 848, 849 (Ala. Crim. App. 1987). 

On November 7, 1985, Petitioner was tried in the Circuit Court of Clarke County,

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 2 of 17
2

 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)

3

 The disposition of this petition is not entirely clear from the record. The Court deduces

from the posture of Petitioner’s subsequent Rule 32 motions, as well as his habeas petition, that

this request for relief was denied.

4

 The record is unclear as to the precise date that this petition was filed.

3

Alabama, and convicted of first degree sodomy. (Doc. 7, Att. 1 at 34-35). On December 9,

1985, he was sentenced to life imprisonment. (Id. at 38-39).

Petitioner appealed his conviction to the Alabama Court of Criminal Appeals on

December 9, 1985, and the court remanded the case to the trial court for a Batson2

 determination. 

Kemp v. State, 516 So. 2d 848 (Ala. Crim. App. 1987). The Alabama Court of Criminal Appeals

affirmed Petitioner’s conviction and sentence on October 13, 1987, on return from remand. Id.

at 852.

On November 16, 1987, Petitioner filed a petition for post-conviction relief in the state

court.3

 (Doc. 5 at 30). The Alabama Court of Criminal Appeals affirmed the circuit court’s

decision on October 28, 1988. Kemp v. State, 541 So. 2d 84 (Ala. Crim. App. 1988). 

In 1993,4 Petitioner filed another petition for post-conviction relief pursuant to Rule 32 of

the Alabama Rules of Civil Procedure. (Doc. 7, Att. 2 at 2). The circuit court denied that

petition on November 3, 1993, and the Alabama Court of Criminal Appeals affirmed the denial

on February 11, 1994. (Id.; Kemp v. State, 655 So. 2d 59 (Ala. Crim. App. 1994)). The

Alabama Court of Criminal Appeals denied Petitioner’s application for rehearing on March 25,

1994. (Id.). 

On May 16, 2006, Petitioner filed another Rule 32 petition, which was denied by the

circuit court on May 23, 2006. (Doc. 7, Att. 2 at 2). On December 1, 2006, the Alabama Court

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 3 of 17
4

of Criminal Appeals affirmed the circuit court’s denial of the petition, and, on December 20,

2006, overruled Petitioner’s application for rehearing. (Id.; Doc. 7, Att. 3; Kemp v. State, 2 So.

3d 939 (Ala. Crim. App. 2006)). On February 9, 2007, the Alabama Supreme Court denied

Petitioner’s petition for a writ of certiorari and issued a certificate of judgment. (Doc. 7, Att. 4;

Ex parte Kemp, 3 So. 3d 962 (Ala. 2007)).

On April 11, 2007, Petitioner filed another Rule 32 petition, which the circuit court

denied on June 13, 2007. (Doc. 7, Att. 2 at 2). The Alabama Court of Criminal Appeals

affirmed the denial of that petition on August 15, 2008, and overruled Petitioner’s application for

rehearing on September 5, 2008. (Id.; Doc. 7, Att. 5). The Alabama Supreme Court denied

Petitioner’s petition for a writ of certiorari and issued a certificate of judgment on November 21,

2008. (Doc. 7, Att. 6).

On December 31, 2008, Petitioner filed a petition for a writ of habeas corpus with this

Court. (Doc. 1). On January 6, 2009, Petitioner was ordered to re-file his petition on the form

required by this Court, which he did on February 9, 2009. (Docs. 3, 5). In his Answer,

Respondent argues that Petitioner’s habeas petition should be dismissed as untimely under 28

U.S.C. § 2244(d)(1). (Doc. 7 at 4). Petitioner was given an opportunity to respond to the

respondents arguments, which petitioner did on January 8, 2010. (See Docs. 12, 13) The issues

have been fully briefed and are now ripe for the Court’s consideration.

DISCUSSION

Title 28 U.S.C. § 2254 governs the authority of the federal courts to consider applications

for writs of habeas corpus submitted by state prisoners. Henderson v. Campbell, 353 F.3d 880,

889 (11th Cir. 2003). Section 2254 was amended by the Antiterrorism and Effective Death

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 4 of 17
5

Penalty Act (“AEDPA”), which became effective April 24, 1996. Id. at 890. Since Petitioner

filed his petition on December 31, 2008, this case is governed by AEDPA. 

Pursuant to 28 U.S.C. § 2244(d), as amended, a state prisoner seeking a federal habeas

corpus remedy must file his federal petition within one year of the “conclusion of direct review

or the expiration of the time for seeking such review.” The Act provides that:

(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).

The record shows that Petitioner’s conviction became final on October 13, 1987, the date

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 5 of 17
6

that the Alabama Court of Criminal Appeals affirmed his conviction after remand. See Kemp v.

State, 516 So. 2d 848 (Ala. Crim. App. 1987); (Doc. 5 at 4; Doc. 7, Att. 1 at 36-37). For

petitioners whose convictions became final prior to April 24, 1996, the effective date of AEDPA,

the Eleventh Circuit adopted a grace period which allows such persons “a reasonable time of

‘one year from the AEDPA’s effective date’” to file a federal habeas petition. Gay v. Hooks,

2009 WL 801777, *1 n.3 (M.D. Ala. 2009) (quoting Wilcox v. Florida Dep’t of Corrs., 158 F.3d

1209, 1211 (11th Cir. 1998)). Accordingly, absent any tolling, Petitioner had until April 23,

1997, to file a federal habeas petition. See Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir.

1999). 

As discussed above, the record indicates that Petitioner filed a petition for postconviction relief in the state court on November 16, 1987. (Doc. 5 at 30). While the disposition

of this petition is unclear, the Court assumes from the posture of Petitioner’s habeas petition that

it was denied. (Doc. 5 at 3-5). The Alabama Court of Criminal Appeals affirmed the decision of

the circuit court, without opinion, on October 28, 1988. See Kemp v. State, 541 So. 2d 84 (Ala.

Crim. App. 1988). 

Six years later, in 1993, Petitioner filed another petition for post-conviction relief under

Rule 32 of the Alabama Rules of Civil Procedure, which the circuit court denied on November 3,

1993. (Doc. 7, Att. 2 at 2). The Alabama Court of Criminal Appeals affirmed the denial of that

petition on February 11, 1994, Kemp v. State, 655 So. 2d 59 (Ala. Crim. App. 1994) (table), and

overruled Petitioner’s application for rehearing on March 25, 1994. Id. The record indicates

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 6 of 17
7

that Petitioner did not pursue the petition further. (Doc. 7, Att. 2 at 2).

Two years later, on April 24, 1996, Petitioner’s one-year habeas statute of limitations

began to run. It expired on April 23, 1997. 

On May 16, 2006, and April 11, 2007, Petitioner filed two additional petitions under Rule

32, both of which were denied and affirmed on appeal by the Alabama Court of Criminal

Appeals. (Doc. 7, Att. 2 at 2). On December 31, 2008, more than eleven years after his habeas

limitations period expired, Petitioner filed the instant habeas petition in this Court. 

To save his untimely petition, Petitioner must demonstrate circumstances excusing his

untimely filing, such as statutory or equitable tolling, delayed commencement of the AEDPA

limitations period, or actual innocence. This Petitioner has failed to do. 

Section 2244(d)(2) provides for statutory tolling of the habeas limitations period during

the time in which a properly filed application for state post-conviction or other collateral review

is pending. As noted above, Petitioner filed four post-conviction petitions in the state court

before filing his habeas petition in this Court. The first two of his state post-conviction petitions

were filed in 1987 and 1993, respectively, and were no longer pending when the one-year habeas

statute of limitations began to run on April 24, 1996, and the last two petitions were filed in 2006

and 2007, respectively, long after the limitations period had already expired on April 23, 1997. 

Thus, none of Petitioner’s Rule 32 petitions had any tolling effect on the one-year limitations

period which ran from April 24, 1996, to April 23, 1997. See, e.g., Webster v. Moore, 199 F.3d

1256, 1259 (11th Cir. 2000) (“Under § 2244(d)(2), even ‘properly filed’ state-court petitions

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 7 of 17
8

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.”). Therefore, statutory tolling of the habeas limitations

period under § 2244(d)(2) is inapplicable to this case. 

With respect to equitable tolling, the courts have recognized that it “is an extraordinary

remedy” that may excuse a petitioner’s delay in filing a timely petition for federal habeas relief. 

Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir. 2004). However, equitable tolling “is typically

applied sparingly” and only where a petitioner establishes that his habeas petition was untimely

“because of extraordinary circumstances that are both beyond his control and unavoidable even

with diligence.’” Id. (emphasis in original) (citations omitted). “The burden of establishing

entitlement to this extraordinary remedy plainly rests with the petitioner.” Id. 

A determination as to whether rare and exceptional circumstances

are presented requires the examination of the facts in each case. 

Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (per

curiam). The focus of the inquiry regarding “extraordinary

circumstances” is “on the circumstances surrounding the late filing

of the habeas petition” and not on the circumstances of the

underlying conviction, Helton v. Secretary for the Dep’t of Corr.,

259 F.3d 1310, 1314-15 (11th Cir. 2001) (per curiam), and

whether the conduct of others prevented the petitioner from timely

filing, see Lawrence, 421 F.3d at 1226.

Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir. 2006).

Petitioner has not alleged any rare and exceptional circumstances that prevented him

from timely filing his habeas petition. Petitioner alleges only that his untimely filing should be

excused because he was illiterate during the first twenty years of his incarceration. (Doc. 10 at

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 8 of 17
9

6-8; Doc. 5 at 7). Petitioner’s argument is unavailing. 

In Conner v. Bullard, 2005 WL 1387630, *3 (S.D. Ala. 2005) (unpublished), this Court

held:

. . . Petitioner acknowledges that his habeas petition was filed one

year and nine months late. However, he asserts that his late

petition should be accepted because he is illiterate and could not

find inmate assistance to help with the filing of his habeas petition. 

“[T]here is no right to legal counsel in collateral proceedings,

Hooks v. Wainwright, 775 F.2d 1433, 1437-38 (11th Cir. 1985);

thus, the “failure to act or think like a lawyer cannot be cause for

failing to assert a claim.” Smith v. Newsome, 876 F.2d 1461, 1465

(11th Cir. 1999). Accordingly, in this case, Petitioner’s lack of

legal knowledge does not suffice to excuse his delay in filing a

timely petition for federal habeas relief. Where Respondent has

asserted the defense of statute of limitations and Petitioner has

failed to meet his burden of establishing extraordinary

circumstances which would justify the equitable tolling of § 2244’s

one year statute of limitations, the undersigned must recommend

that this case be dismissed as time-barred.

Conner, 2005 WL 1387630, *3 (S.D. Ala. 2005). See also Smith v. Newsome, 876 F.2d 1461,

1465-66 (11th Cir. 1989) (petitioner’s illiteracy did not constitute cause for procedural default of

his constitutional claim); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (“ We have held

that neither a plaintiff’s unfamiliarity with the legal process nor his lack of representation during

the applicable [habeas] filing period merits equitable tolling. . . . It is irrelevant whether the

unfamiliarity is due to illiteracy or any other reason.”). Therefore, equitable tolling of the habeas

limitations period is inapplicable to this case. 

Likewise, there is no basis for delaying the commencement of the one-year habeas

limitations period under § 2244(d)(1)(D), which provides for delayed commencement of the

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 9 of 17
10

statutory period when there is a newly discovered factual predicate for a petitioner’s claim which

could not have been discovered earlier through the exercise of due diligence. In his habeas

petition, Petitioner claims that, although he was indicted for second degree sodomy, he was

convicted of first degree sodomy, making his conviction and sentence illegal. (Doc. 5 at 7). 

Petitioner claims that he was unaware of this fact until twenty-two years after his conviction

because he was illiterate. (Id. at 8, 12-13). 

In support of his claim, Petitioner submits the affidavit of a fellow prisoner, Patrick

Charest, who states that he began assisting Petitioner with his legal filings in the winter of 2006. 

(Id. at 33). In March, 2007, he, Charest, discovered and made Petitioner aware that Petitioner

had been indicted for second degree sodomy but convicted of first degree sodomy. (Id. at 34-

35). Petitioner claims that the discovery of this information through his fellow inmate’s research

constitutes newly discovered evidence sufficient to delay the commencement of the one-year

statute of limitations. The Court disagrees.

Contrary to Petitioner’s argument, the facts purportedly discovered by inmate Charest in

March, 2007, do not constitute newly discovered evidence. The details of Petitioner’s

indictment existed and were known or easily discoverable at the time of Petitioner’s trial,

conviction, sentence, and direct appeal, at which time Petitioner was represented by legal

counsel. (Doc. 1 at 24). There is no allegation that Petitioner’s counsel was denied access to

this information. Therefore, the details of Petitioner’s indictment, if not known by Petitioner’s

counsel, were easily discoverable with due diligence and, thus, cannot be considered “newly

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 10 of 17
5

 “[I]n order to demonstrate actual innocence in a post-conviction proceeding, a

petitioner must first ‘support [her] allegations of constitutional error with reliable new

evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence-that was not presented at trial.” Rankin v. Culliver, --- F .3d ----, 2009

WL 577735, * 6 (S.D.Ala. Mar. 5, 2009)(emphasis added), quoting Schlup v. Delo, 513 U.S.

298, 324 (1995). Thus, “[a] petitioner must show that it is more likely than not that no

reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Id., quoting 

Schlup, 513 U.S. at 327.

11

discovered.” Therefore, delayed commencement of the habeas statute of limitations under §

2244(d)(1)(D) is inapplicable to this case. 

Finally, Petitioner claims that his actual innocence5

 merits consideration of his otherwise

untimely federal petition. (Doc. 10 at 4-6). The Court disagrees.

In Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008), the Eleventh Circuit stated:

Neither the Supreme Court nor this Court has ever held that the

Constitution requires an actual innocence exception to the

AEDPA’s one-year limitations period. See Johnson v. Florida

Dep’t of Corr., 513 F.3d 1328, 1333 (11th Cir.2008) (“To date, this

Court has avoided this constitutional issue because no time-barred

petitioner has made the requisite actual-innocence showing.”). 

Before reaching this question, the petitioner must first make a

sufficient showing of actual innocence. Id. This requires the

petitioner to produce “‘new reliable evidence-whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence-that was not presented at trial.’” 

Arthur, 452 F.3d at 1245 (quoting Schlup, 513 U.S. at 324, 115 S.

Ct. at 865). If the petitioner shows “that it is more likely than not

that no reasonable juror would have convicted him in the light of

the new evidence,” then he has made a “gateway” claim of

innocence allowing his otherwise barred constitutional claims to be

considered on the merits. Schlup, 513 U.S. at 315, 327, 115 S. Ct.

at 861, 867.

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 11 of 17
6

 It is still unclear whether the Eleventh Circuit will recognize an “actual innocence”

exception to the AEDPA's one year statute of limitations. See e.g. Milton v. Secretary,

Department of Corrections, 2009 WL 3150246 (11th Cir., October 1, 2009)citing Wyzykowski,

226 F.3d at 1218-19. (“To avoid answering that difficult constitutional question until necessary,

we have held that before addressing whether the AEDPA's limitations period constitutes a

violation of the Suspension Clause in the case of a claim of actual innocence, we should first

consider whether the petitioner can show actual innocence.”); Taylor v. Secretary, Dep't of

Corrections, 230 Fed. Appx. 944, 945 (11th Cir.2007)(“ “[W]e have never held that there is an

‘actual innocence’ exception to the AEDPA's one-year statute of limitations, and we decline to

do so in the instant case because [the petitioner] has failed to make a substantial showing of

actual innocence.”), and U.S. v. Montano, 398 F.3d 1276, 1284 (11th Cir.2005)(“Actual

innocence is not itself a substantive claim, but rather serves only to lift the procedural bar caused

by Appellant's failure timely to file his § 2255 motion.”) However, several other circuits have

recognized such an exception. See e.g. Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005)(“[W]e

hold that where an otherwise time-barred habeas petitioner can demonstrate that it is more likely

than not that no reasonable juror would have found him guilty beyond a reasonable doubt, the

petitioner should be allowed to pass through the gateway and argue the merits of his underlying

constitutional claims.”); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002)(“[A]ctual

innocence, if it can be shown, opens the gate to consideration of constitutional claims on their

merits, claims that would otherwise be procedurally barred.”).

7

 The crime of first degree sodomy is codified at Ala. Code 1975, § 13A-6-63, as follows:

(a) A person commits the crime of sodomy in the first degree if:

12

In evaluating this new evidence, a habeas court “may

consider how the timing of the submission and the likely

credibility of the affiants bear on the probable reliability of that

evidence.” House, 547 U.S. at 537, 126 S. Ct. at 2077 (quotation

marks and citation omitted). The court then assesses the likely

impact of this new evidence on reasonable jurors. Id. at 538, 126

S. Ct. at 2077. The demanding nature of the Schlup standard

ensures that only the “extraordinary” case will merit review of the

procedurally barred claims. Id.

Melson, 548 F.3d at 1002. 6

In this case, Petitioner has failed to make a substantial showing of actual innocence of the

crime of first degree sodomy.7

 Petitioner does not even suggest that there is “new reliable

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 12 of 17
(1) He engages in deviate sexual intercourse with another person by

forcible compulsion; or

(2) He engages in deviate sexual intercourse with a person who is

incapable of consent by reason of being physically helpless or mentally

incapacitated; or

(3) He, being 16 years old or older, engages in deviate sexual intercourse

with a person who is less than 12 years old.

(b) Sodomy in the first degree is a Class A felony.

8

 In Petitioner’s Rule 32 proceedings, the Alabama Court of Criminal Appeals rejected

Petitioner’s argument that the alleged deficiency in the indictment divested the trial court of

jurisdiction to hear the case. (Doc. 7, Att. 2 at 3). The court held that Petitioner’s claim was

non-jurisdictional and, thus, procedurally barred. (Id.).

9

 “Pursuant to Eleventh Circuit Rule 36-2, unpublished opinions are not considered

binding precedent, but may be cited as persuasive authority.” Lanier Constr., Inc. v. Carbone

Props. of Mobile, LLC, 253 Fed. Appx. 861, 865 n.5 (11th Cir. 2007) (unpublished).

13

evidence” that was not presented at trial that makes it “more likely than not that no reasonable

juror would have convicted him” of first degree sodomy. Id. Rather, Petitioner merely asserts a

legal technicality8 as the basis for his “actual innocence” exception. Petitioner’s argument is

unavailing. 

In Justo v. Culliver, 317 Fed. Appx. 878, 880-81 (11th Cir. 2008) (unpublished),9 the

Eleventh Circuit rejected a similar claim of actual innocence based on a deficiency in the

indictment, stating: 

Justo supports his actual innocence claim with no “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, 115 S. Ct. 851,

865, 130 L. Ed. 2d 808 (1995). Instead, Justo rests his actual

innocence claim exclusively on the indictment deficiency. . . . For

purposes of the “actual innocence” exception to a procedural bar,

the petitioner must show “factual innocence, not mere legal

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 13 of 17
14

insufficiency.” Bousley v. United States, 523 U.S. 614, 118 S. Ct.

1604, 1611, 140 L. Ed. 2d 828 (1998).

Justo fails to show actual 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.

Justo v. Culliver, 317 Fed. Appx. 878, 880-81 (11th Cir. 2008). See also Brown v. Dretke, 2003

WL 22251389, *1-2 (N.D. Tex. 2003) (unpublished) (holding that petitioner’s burden of

establishing actual innocence to excuse the procedural default of his claim had not been met

despite allegations of a fatal variance between the indictment and the evidence). Thus, Petitioner

falls short of the burden required to obtain relief on the basis of “actual innocence.”

CERTIFICATE OF APPEALABILITY

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

recommends that a certificate of appealability in this case be denied. 28 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 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, in part, on procedural grounds without reaching the merits of an 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

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 14 of 17
15

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), and, in

part, on the merits of an underlying constitutional claim, a COA should issue only when the

petitioner demonstrates “that reasonable jurists would find the district court's assessment of the

constitutional claims debatable or wrong[,]” id.; see also id. at 483-484 (“To obtain a COA under

§ 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional

right, a demonstration that, under Barefoot, includes showing 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.” ‘ ”); see Miller-El v. Cockrell, 537 U.S. 322, 336 (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.” ‘ ”). 

None of the petitioner’s claims are such as would warrant the issuance of a Certificate of

Appealability. The recommendation that they be denied is based on straighforward application

of clear Circuit precedent, and no reasonable jurist could differ on the appropriate disposition of

his claims on the record presented. Petitioner’s claims are obviously time-barred, and petitioner

has failed to demonstrate any basis for tolling of that period, for finding that his claim involves

newly-discovered evidence, or that petitioner has made a sufficient showing of ‘actual

innocence’ of the charges for which he was convicted. It is thus RECOMMENDED that the

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 15 of 17
16

court DENY any request for Certificate of Appealability.

CONCLUSION

Petitioner has failed to show any legal ground to excuse the untimeliness of his habeas

petition. He has failed to establish statutory or equitable tolling of the AEDPA limitations

period, delayed commencement of the limitations period, or actual innocence. Based on the

foregoing, the undersigned Magistrate Judge is of the opinion that Petitioner’s petition for

habeas corpus is due to be DISMISSED with prejudice as time barred and that judgment is due

to be entered in favor of Respondent, Billy Mitchem, and against Petitioner, Bill Kemp, pursuant

to 28 U.S.C. § 2244(d), and that petitioner is not entitled to issuance of a Certificate of

Appealability. 

The instructions which follow the undersigned’s signature contain important information

regarding objections to the report and recommendation of the Magistrate Judge.

DONE this 9th day of February 2010. 

 /s/ Katherine P. Nelson 

 KATHERINE P. NELSON

 UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 16 of 17
17

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten

[now fourteen] days of the date of service of this document, file specific written objections with the

clerk of 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). 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, in part, 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 [now fourteen] days 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. Opposing party’s response to the objection. Any opposing party may submit a brief

opposing the objection within fourteen days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. 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 action

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.

/s/ Katherine P. Nelson

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cv-00745-WS-N Document 14 Filed 02/09/10 Page 17 of 17