IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY JUJUAN HOPKINS, *

 *

Petitioner, *

 *

vs. * CIVIL ACTION: 14-00528-WS-B

 *

CHRISTOPHER GORDY, *

 *

Respondent. *

REPORT AND RECOMMENDATION

Anthony JuJuan Hopkins, a state inmate in the custody 

of Respondent, has petitioned this Court for federal habeas 

corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1). The 

petition has been referred to the undersigned Magistrate 

Judge for a 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. The undersigned has 

conducted a careful review of the record and finds that no 

evidentiary hearing is required to resolve this case. 

Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317 (11th 

Cir. 2004).

Having carefully considered Hopkins’ petition, 

Respondent's supplemental answer (Doc. 22), and 

Petitioner’s multiple replies to Respondent’s filings

(Docs. 12, 16, 23), the undersigned finds that Hopkins’ 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 1 of 17
2

petition is untimely, and that equitable tolling is not 

appropriate.1

Accordingly, it is recommended that Hopkins’ habeas 

petition be dismissed as time-barred, and that judgment be 

entered in favor of Respondent and against Petitioner, 

Anthony JuJuan Hopkins, pursuant to 28 U.S.C. § 2244(d). 

The Court further recommends a finding that Hopkins is not 

entitled to a certificate of appealability, and as a 

result, he is not entitled to appeal in forma pauperis.

I. Discussion

A. Background

Hopkins was indicted by a grand jury in Mobile County 

Circuit Court on April 10, 2009 for one count of murder, 

second-degree rape, second-degree sodomy, incest, and 

second-degree sexual abuse. (Doc. 10-1 at 48-56). The jury 

found Hopkins guilty of all counts charged in the 

indictment, and on May 20, 2010, he was sentenced to 

consecutive terms of life in prison for the his murder 

conviction, 20 years in prison for his conviction of 

second-degree rape, 20 years in prison for his conviction 

of second-degree sodomy, 10 years in prison for his 

																																																							 1 Also pending before the Court is Hopkins’ motion for 

leave to file summary judgment. (Doc. 25). This motion 

for leave to file summary judgment is DENIED as moot based 

on this recommendation. 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 2 of 17
3

conviction of incest, and 1 year in jail for his conviction 

of second-degree sexual abuse. (Docs. 1 at 2; 10-1 at 1, 

49, 51, 53. 55, 56). On appeal to the Alabama Court of 

Criminal Appeals, Hopkins’ conviction and sentence were 

affirmed in an unpublished memorandum opinion on March 18, 

2011. (Doc. 10-20). A certificate of judgment was issued 

on April 6, 2011. (Doc. 10-21). After the certificate of 

judgment was entered, Hopkins filed a motion to suspend the 

rules to allow him to file an out-of-time request for 

rehearing. (Doc. 10-22). The motion was denied by the 

Alabama Court of Criminal Appeals on June 10, 2011. (Doc.

10-23). Hopkins did not file a petition for writ of 

certiorari to the Alabama Supreme Court. 

On March 13, 2012, 2 Jones filed a motion for relief 

pursuant to Alabama Rule of Criminal Procedure 32 on March 

13, 2012. (Doc. 10-24 at 7). The trial court denied the 

motion as meritless on March 5, 2013. (Doc. 10-25 at 35). 

Hopkins appealed the dismissal, and on appeal, the Alabama 

																																																							 2 Hopkins’ petition bore a signature date of March 13, 

2012, and was received by the Clerk's Office on March 19, 

2012. (Doc. 10-24 42, 77) Absent evidence to the contrary, 

the Court assumes that the petition was delivered to prison 

authorities for mailing on the day that Hopkins signed it. 

See Washington v. U.S., 243 F.3d 1299, 1301 (11th Cir. 

2001). Under the "mailbox rule," "a prisoner's pro se § 

2255 motion is deemed filed the date it is delivered to 

prison authorities for mailing." Id.

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 3 of 17
4

Court of Criminal Appeals affirmed the trial court's 

dismissal of the Rule 32 petition on December 13, 2013. 

(Doc. 10-30). Hopkins’ application for rehearing was 

overruled on March 14, 2014. (Doc. 10-32). On March 25, 

2014, Hopkins filed a petition for writ of certiorari to 

the Alabama Supreme Court (Doc. 10-33 at 22). Hopkins’ 

application for rehearing was denied on July 11, 2014, and 

the Alabama Supreme Court issued the judgment the same day.

(Docs. 10-34; Doc. 10-16).

On November 10, 2014,3 Hopkins filed the instant habeas 

petition challenging his conviction and sentence. (Doc. 1 

at 12). Hopkins raises sixteen (16) claims involving 

ineffective assistance of counsel, prosecutorial 

misconduct, and the lack of jurisdiction of the trial 

court. 4 (Id. at 6-18). In its response, the Respondent 

																																																							 3 See, supra, note 2 explaining that a prisoner’s pro se 

petition is deemed filed on the date the petition is signed 

and delivered to prison authorities to be mailed. 

Washington v. U.S., 243 F.3d 1299, 1301 (11th Cir. 2001)

4 Hopkins claims his trial counsel was ineffective for: 

failing to move for venue change, failing to assert victim 

died of natural causes, failing to object to state’s motion 

in limine regarding the admittance of evidence (sexual 

disease test results revealed that the victim tested 

positive for chlamydia while the Petitioner tested 

negative), failing to object to prosecutor’s “untrue” 

statements during opening and closing arguments, and 

prejudicial statements made during voir dire questioning, 

failing to object to state’s use of evidence of 

pornographic videos, failure to object to prosecution’s 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 4 of 17
5

argues that Hopkins’ petition should be dismissed as 

untimely because it was filed outside of the statute of 

limitations. 5 (Doc. 10 2, 13-15). Upon careful review, the

undersigned agrees.

B. Analysis

Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the 

April 24, 1996 enactment of The AEDPA, a state prisoner 

seeking a federal habeas corpus remedy must file his 

federal petition within one year of the "conclusion of 

																																																																																																																																																																				

timeline of sexual offenses, failure to move to sever the 

murder charge from the consolidated sexual offense charges, 

failure to inform jury that the state failed to carry its 

burden to prove motive for murder, failure to move for jury 

sequestering, and failure to suppress the admission of 

Petitioner’s outgoing jail mail. Hopkins also claims that 

the prosecutor used the trial coverage to campaign for 

district attorney; that the state pathologist identified no 

cause of death to “reflect” homicide; that the murder 

indictment lacked a cause of death which made it difficult 

to impossible to prepare a defense; that the state coerced 

a witness to commit perjury; and the trial court abused its 

discretion in denying Hopkins’ Rule 32 petition. (Doc. 1 

at 6-18).

5 In its original response, Respondent asserted that 

Hopkins’ Rule 32 petition was filed on March 13, 2013, 

after expiration of the one-year limitation period set 

forth by the AEDPA. (Doc. 10 at 7). Hopkins disputed this 

assertion, and the records before the Court reflect that 

the Rule 32 petition was actually filed on March 13, 2012 

as opposed to March 13, 2013. Thus, the Court ordered 

Respondent to file an amended answer addressing the 

timeliness issue of Hopkins’ petition. (Doc. 18). 

Respondent filed a supplemental response acknowledging the 

error, and arguing that the petition was nevertheless 

untimely because it was filed 105 days past the AEDPA oneyear statute of limitations. (Id. at 2-3, n.1).

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 5 of 17
6

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).

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 6 of 17
7

Hopkins has not alleged that the Government impeded 

the filing of his 2254 motion or that a retroactive new 

constitutional right exists in his case. Accordingly, the 

Court will calculate the timeliness of his petition from 

the date Hopkins’ conviction became final.

Generally, a judgment becomes final at the expiration 

of the ninety-day period in which to seek certiorari review 

from the Supreme Court of the United States. 28 U.S.C. § 

2244(d)(1)(A); see, Nix v. Sec'y for Dept. of Corr., 393 

F.3d 1235, 1236 (11th Cir. 2004). However, if a petitioner 

pursues a direct appeal to the Alabama Court of Criminal 

Appeals, but does not petition for certiorari before the 

Alabama Supreme Court, his conviction becomes final for 

purposes of 2244(d)(1)(A) upon the expiration of the 

deadline for seeking such discretionary review. See

Gonzalez v. Thaler, __U.S. __,___,, 132 S. Ct. 641, 653-54, 

132 S. Ct. 641, 181 L. Ed. 2d 619 (2012); Pugh v. Smith, 

465 F.3d 1295, 1299 (11th Cir. 2006) (the Supreme Court 

requires petitioners to seek review in the state's highest 

court before filing a petition for certiorari).

Under Alabama law, before filing a certiorari petition 

with the Alabama Supreme Court, a criminal defendant is 

required to apply for rehearing in the Alabama Court of 

Criminal Appeals within 14 days of the entry of that 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 7 of 17
8

court’s decision. See Ala. R. App. P. 39(c), 40(c). In 

this case, Hopkins did not file for a motion seeking a 

rehearing within 14 days of the Alabama Court of Criminal 

Appeals March 18, 2011 decision affirming his petition, nor 

did he file a petition for certiorari with the Alabama 

Supreme Court. Thus, his conviction became final on April 

6, 2011 when the Alabama Court of Criminal Appeals issued a 

certificate of Judgment. And, that is the date that the 

one-year period for filing his federal habeas petition 

commenced. See 28 U.S.C. § 224 (d)(1)(A). 

Title 28 U.S.C. § 2244(d)(2) provides that “[t]he time 

during which a properly filed application for State postconviction or other collateral review with respect to the 

pertinent judgment or claim is pending shall not be counted 

toward any period of limitation under this section.” 

Because Hopkins’ conviction became final on April 6, 2012, 

he was required to file his federal petition within one 

year, exclusive of the time that any properly filed state 

post-conviction motion remained pending in state court.

As noted supra, following the issuance of the 

certificate of judgment by the Alabama Court of Criminal 

Appeals on April 6, 2011, Hopkins filed a belated motion 

for rehearing with the Alabama Court of Criminal Appeals on 

June 2, 2011. Assuming arguendo that his filing tolled the 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 8 of 17
9

limitations period, by the time it was filed, 56 days in 

the limitations period had elapsed 6 . The Alabama Court of 

Criminal Appeals denied his motion as untimely on June 10, 

2011, and the limitations period resumed again until March 

13, 2012, when Hopkins filed his Rule 32 petition.

The filing of the Rule 32 petition resulted in another 

tolling of the limitations period. See 28 U.S.C. §2244 

(d)(2); see also In Re Hill, 437 F.3d 1080, 1083 (llth Cir. 

2006). At this point, a total of 266 days had elapsed from 

the AEDPA one-year limitations period. The limitations 

period was tolled until July 11, 2014, when the Alabama 

Supreme Court issued a certificate of Judgment dismissing 

Hopkins Rule 32 petition. (Doc. 10-16). At that point, the 

limitations’ clock resumed, and Hopkins had 43 days in 

which to file his federal habeas petition, or until August 

25, 2014, absent another tolling event. The record 

reflects and Hopkins does not dispute that he did not file 

																																																							 6 It is not clear that this belated motion resulted in a 

tolling of the limitations period. See Sibley v. Culliver, 

377 F.3d 1196, 1200 (llth Cir. 2004)(In order for a motion 

to toll the AEDPA one-year filing deadline, the filing must 

set forth the grounds upon which it is based, must state 

the desired relief sought, and must attack collaterally the 

relevant conviction or sentence.); see also Mogford v. 

Dep’t of Corr., 294 F. App’x 458 (llth Cir. 2008)(postconviction “motion to mitigate” did not toll AEDPA statute 

of limitations as the motion was not an application for 

state post-conviction or other collateral review under 28 

U.S.C. § 2244(d)(2)

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 9 of 17
10

his habeas petition with his Court until November 10, 2014, 

which is after expiration of the one-year AEDPA limitations 

period7. 

To save his untimely petition, Hopkins must 

demonstrate circumstances excusing his failure to file 

within AEDPA’s one-year limitations period. Before 

recommending the dismissal of his petition for habeas 

relief as untimely, the undersigned must determine whether

Hopkins has pled extraordinary circumstances which require 

a contrary conclusion. The Eleventh Circuit has stated 

that:

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.” Sandivik v. United States, 177 F.3d 

1269, 1271 (11th Cir. 1999). Equitable tolling is 

an extraordinary remedy which is typically 

applied sparingly. See Irwin v. Dept. of 

Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 

453, 112 L. Ed. 2d 435 (1990).

																																																							 7 Hopkins does however, assert in error, that the AEDPA oneyear statute of limitations period did not commence until 

July 11, 2014 when he received the certificate of Judgment 

from the Alabama Supreme Court. According to Hopkins, it 

was at this point that his conviction became final, and the 

limitations period commenced. (Doc. 23 at 2). As explained 

supra, Hopkins’ conviction became final with the issuance 

of the certificate by the Alabama Court of Criminal Appeals 

on April 6, 2011.

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 10 of 17
11

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). See 

also Miller v. New Jersey State Dep’t of Corr., 145 F.3d 

616, 618-19 (3rd Cir. 1998) (“equitable tolling is proper 

only when the ‘principles of equity would make [the] rigid 

application [of a limitation period] unfair’”). The burden 

firmly rests with the petitioner to establish that he is 

entitled to the benefit of this extraordinary remedy. Drew 

v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002). 

The circumstances of Hopkins’ case fail to demonstrate that 

he is entitled to the equitable tolling of the AEDPA’s 

statutory limitations period. 

The facts presented by Hopkins do not demonstrate that 

any extraordinary circumstances beyond his control made it 

impossible for him to file his petition for a writ of 

habeas corpus in a timely manner, nor do they present a 

sufficient basis upon which to conclude that he used due 

diligence in pursuing habeas relief and unavoidable 

circumstances beyond his control that made it impossible 

for him to file this action within AEDPA’s time limit.

Hopkins’ only argument for equitable tolling is that he is 

actually innocent of the convictions and that “it would be 

a miscarriage of justice to not address his claims of 

prosecutorial misconduct. . . .” (Doc. 23 at 9). 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 11 of 17
12

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 (1995); see also id. 

at 327 ("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."). Hopkins has not come forward with 

any evidence which establishes his actual innocence and 

thereby undermines his murder or sex crime convictions. In 

fact, Hopkins simply makes a conclusory argument that but 

for the prosecutor’s misconduct, he would not have been 

convicted of the charges.8 (Doc. 23 at 9). This falls short 

of a an actual innocence argument. Accordingly, this is 

not one of the rare cases in which the actual innocence 

exception is applicable, and the Court finds Hopkins’ 

habeas petition to be time-barred.

																																																							 8 Hopkins asserts, “it would be a miscarriage of justice 

to not address his claims of prosecutorial misconduct which 

[are] the direct result of Hopkins being convicted of said 

crimes, and without such, if not but for such actions on 

the part of the prosecutor, Hopkins here contend that he 

would have been exonerated of all said crimes.” (Doc. 23 

at 9). 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 12 of 17
13

II. Certificate of Appealability is denied. 

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

Cases, “[t]he district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant.” Rule 11(a) of the Rules 

Governing 2254 Cases (December 1, 2009). 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. § 2253(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); 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."'"). Inasmuch as it is 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 13 of 17
14

clear that any claim for relief made pursuant to § 2254 is 

time-barred, a reasonable jurist could not conclude either 

that this Court is in error in dismissing the instant 

petition or that the petitioner should be allowed to 

proceed further. See Slack, 529 U.S. at 484 ("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.").

In the instant case, Petitioner's claims do not 

warrant the issuance of a Certificate of Appealability. 

Petitioner's claims are time-barred and he has failed to 

demonstrate any basis for tolling the limitations period. 

Therefore, no reasonable jurist could differ on the 

appropriate disposition of the petition on the record 

presented. It is thus recommended that the Court deny any 

request for a Certificate of Appealability. Because 

Petitioner is not entitled to a Certificate of 

Appealability, any request for leave to appeal in forma 

pauperis is also due to be denied.9

																																																							 9 The guidelines for proceeding in forma pauperis are set 

forth in 28 U.S.C. § 1915. An appeal may not be taken in 

forma pauperis if the trial court certifies in writing that 

the appeal is not taken in good faith. 28 U.S.C. § 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 14 of 17
15

III. Conclusion.

Based on the foregoing, it is the recommendation of 

the undersigned Magistrate Judge that Hopkins’ petition for 

habeas corpus be dismissed with prejudice as time barred 

and that judgment be entered in favor of the Respondent, 

Christopher Gordy, and against the Petitioner, Anthony 

Jujuan Hopkins. It is further recommended that any motion 

for a Certificate of Appealability or for permission to 

appeal in forma pauperis be denied.

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 

																																																																																																																																																																				

1915(a)(3); see Fed. R. App. P. 24(a)(3)(A); Lee v. 

Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000) (concluding 

that “good faith” is “an objective concept” and that “not 

taken in good faith” is “a synonym for frivolous”); 

DeSantis v. United Techs, Corp., 15 F. Supp. 2d 1285, 1288-

89 (M.D. Fla. 1998) (stating that good faith “must be 

judged by an objective, not a subjective, standard” and 

that an appellant “demonstrates good faith when he seeks 

appellate review of any issue that is not frivolous”). An 

appeal filed in forma pauperis is frivolous if it appears 

that the appellant “has little or no chance of success,” 

meaning that the “factual allegations are ‘clearly 

baseless’ or that the legal theories are ‘indisputably 

meritless.’” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 

1993) (citations omitted). For the reasons previously 

stated in addressing the Certificate of Appealability, the 

undersigned concludes that an appeal in this case would be 

without merit and would not be taken in objective good 

faith. Thus, Petitioner is neither entitled to a 

Certificate of Appealability nor to appeal in forma 

pauperis.

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 15 of 17
16

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 GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge’s findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) 

waives the right to challenge on appeal the district 

court’s order based on unobjected-to factual and legal 

conclusions if the party was informed of the time period 

for objecting and the consequences on appeal for failing to 

object. In the absence of a proper objection, however, the 

court may review on appeal for plain error if necessary in 

the interests of justice.” 11th Cir. R. 3-1. 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 done by 

the Magistrate Judge is not specific. 

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 16 of 17
17

DONE this 7th day of March, 2016.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00528-WS-B Document 29 Filed 03/07/16 Page 17 of 17