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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID TYRONE MARTIN, :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 14-0370-CB-M

 :

JAMES REYNOLDS, :

 :

Respondent. :

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama 

inmate that 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. This action is now 

ready for consideration. The state record is adequate to 

determine Petitioner's claims; no federal evidentiary hearing is 

required. It is recommended that this habeas petition be 

dismissed as time-barred and that judgment be entered in favor 

of Respondent James Reynolds and against Petitioner David Tyrone 

Martin pursuant to 28 U.S.C. § 2244(d). It is further 

recommended that any certificate of appealability filed by 

Petitioner be denied as he is not entitled to appeal in forma 

pauperis.

Petitioner was convicted of unlawful possession of cocaine

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in the Mobile County Circuit Court on October 17, 1997 for which 

he received a ten-year sentence in the state penitentiary (Doc. 

1, p. 2; see also Doc. 3, p. 3). Martin did not appeal his 

conviction or sentence (Doc. 1, p. 3; Doc. 3, p. 4). 

Petitioner filed a State Rule 32 petition on March 2, 1999

(see Doc. 3, Exhibit A, p. 2). Following the denial of the 

petition by the lower court, the Alabama Court of Criminal 

Appeals dismissed the appeal for Martin’s failure to file a 

brief (see id.). 

A second Rule 32 petition was filed on January 7, 2002 that 

was summarily dismissed (see id.). On June 21, 2002, the 

Alabama Court of Criminal Appeals affirmed the denial of the 

petition (Doc. 3, Exhibit A). Martin was unsuccessful in 

getting the Appellate Court to rehear his case (see Doc. 3, p. 

5) and, on August 27, 2002, a certificate of judgment was 

entered (Doc. 3, Exhibit B).

Martin filed a third Rule 32 petition in March 2010 that 

was denied on April 15, 2011 (see Doc. 3, p. 5). No appeal was 

filed (see id.).

Petitioner filed his fourth and final Rule 32 petition on 

September 30, 2011; it was denied and dismissed on January 23, 

2013 (Doc. 3, Exhibit C, pp. 1-2). The Alabama Court of 

Criminal Appeals affirmed the denial (Doc. 3, Exhibit C). A 

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certificate of judgment was entered on June 25, 2014 (Doc. 3, 

Exhibit D). 

Petitioner filed a complaint with this Court on July 30, 

2014 raising the following single claim: His conviction is void 

and his sentence illegal because the sentencing judge was not 

the judge who conducted the plea colloquy to determine if Martin 

was knowingly and voluntarily pleading to the charge against him 

(Docs. 1, 9). 

Respondent has answered the petition, arguing that it 

should be dismissed as it was not filed within the one-year 

statute of limitations period (Doc. 3, pp. 6-7). Respondent 

refers to provisions of the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (hereinafter AEDPA) that amended, in 

pertinent part, 28 U.S.C. § 2244. The specific provision states 

as follows: 

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 the date 

on which the judgment became final by the 

conclusion of direct review or the 

expiration of the time for seeking such 

review.

28 U.S.C. § 2244(d)(1)(A). 

The AEDPA became effective on April 24, 1996. Goodman v. 

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United States, 151 F.3d 1335, 1336 (11th Cir. 1998). 

Petitioner’s conviction became final on November 28, 1997, 

the last day he could file an appeal. Ala.R.App.P. 4(b)(1) (“In 

a criminal case a notice of appeal by the defendant shall be 

filed with the clerk of the trial court within 42 days (six 

weeks) after pronouncement of the sentence, provided that the 

notice of appeal may be oral, as provided in Rule 3(a)(2)”). On 

the next day, November 29, 1997, the AEDPA limitations clock 

began to run, running until November 28, 1998 at which time it 

stopped.

Martin’s habeas corpus petition was not filed in this Court 

until July 30, 2014, more than fifteen years after the AEDPA 

clock stopped. Petitioner filed his first Rule 32 petition in 

State court on March 2, 1999, nearly three months after the 

limitations period had expired. The Eleventh Circuit Court of 

Appeals has held that “[a] state court petition [] that is filed 

following the expiration of the limitations period cannot toll 

that period because there is no period remaining to be tolled.” 

Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Martin’s 

Rule 32 petition was filed too late to toll the statute.

Petitioner’s habeas corpus petition was filed well beyond 

the one-year grace period and filed in violation of 28 U.S.C. § 

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2244(d). The Court finds that Petitioner has provided no cause 

for ignoring the Anti-Terrorism and Effective Death Penalty Act 

of 1996: this action is time-barred.

For the reasoning stated herein, it is recommended that 

this habeas petition be dismissed as time-barred and that 

judgment be entered in favor of Respondent James Reynolds and 

against Petitioner David Tyrone Martin pursuant to 28 U.S.C. § 

2244(d).

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2254 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) 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 COA. 28 U.S.C. § 2253(c)(1). 

A COA 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). Where a habeas petition is being denied on 

procedural grounds, “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 

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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). As Martin has not filed this action in a timely manner, 

a reasonable jurist could not conclude either that this Court is 

in error in dismissing the instant petition or that he should be 

allowed to proceed further. 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”). 

CONCLUSION

It is recommended that Petitioner’s petition for writ of 

habeas corpus, filed pursuant to 28 U.S.C. § 2254, be denied. 

It is further recommended that any certificate of appealability 

filed by Petitioner be denied as 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 

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fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

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

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 25th day of February, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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