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Clarke County is located within the Southern District.

 IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RANNY L. JOHNSON, *

 *

Petitioner, *

*

vs. * CIVIL ACTION 07-00188-KD-B

*

JOHN CUMMINGS, et al., *

*

Respondents. *

REPORT AND RECOMMENDATION

Ranny L. Johnson, an inmate housed at Bullock Correctional

Facility, filed the instant petition seeking habeas corpus relief

under 28 U.S.C. § 2254. (Doc. 4). In his petition, Johnson

challenges the constitutionality of his convictions, pursuant to a

guilty plea, for escape, burglary, and grand larceny in the Circuit

Court of Clarke County, Alabama.1 (Id. at 2). Respondents filed an

Answer, on May 15, 2007, alleging that Johnson’s petition was due

to be dismissed because it is barred by the one-year statute of

limitations. (Doc. 9). Accordingly, in an Order dated April 22,

2009 (Doc. 13), this Court directed Johnson to show cause why his

petition should not be dismissed for failure to comply with the oneyear statute of limitations. In response, Johnson does not dispute

that the instant habeas petition is untimely. Instead, in his

response, Petitioner concedes that “his petition for federal habeas

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review is procedurally infirm. In the same, petitioner does not have

a legal base by which to justify cause to excuse his untimely

petition.” (Doc. 14, p. 4). Johnson also asserts, for the first

time, that he is actually seeking habeas review of a conviction for

attempted rape in Houston County, Alabama (CC-84-612), for which he

received a sentence of life imprisonment as a habitual felony

offender. According to Johnson, the sentence for his attempted rape

conviction was improperly enhanced based on the escape, burglary,

and grand larceny convictions referenced in his petition. (Doc. 14).

Johnson asserts that this Court should excuse his untimeliness and

entertain his petition; otherwise, a “miscarriage of justice” would

result. (Docs. 4, p. 12; 14, p. 5). 

On September 21, 2009, Johnson filed a Motion to Amend (Doc.

16) and a “Notice of Voluntary Waiver of Claims” (Doc. 17), wherein

he states that he seeks to pursue relief only for the conviction

alleged in his response to the Court’s show cause order, namely the

attempted rape conviction, and that he “waive[s] judicial review of

all claims previously presented in [his] original petition to this

Court.” (Docs. 16, 17). Johnson also filed an amended petition

seeking relief under § 2241. (Doc. 18). As best the undersigned can

discern, Johnson seeks to voluntarily dismiss his claims based on

his escape, burglary, and grand larceny convictions, and instead

attack the life sentence he received for attempted rape.

Additionally, on October 29, 2009, Johnson filed a Motion to

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Transfer (Doc. 20), wherein he argues that this Court lacks

jurisdiction to entertain his petition, as amended, and that the

petition, as amended, should be transferred to the Middle District

of Alabama, because the Circuit Court of Houston County, which

rendered the sentence for the attempted rape conviction, is located

in the Middle District. For the reasons set forth below, the

Court recommends that Johnson’s request to dismiss his claims based

on his escape, burglary, and grand larceny convictions be GRANTED,

and that his Motion to Amend and his Motion to Transfer be DENIED.

As noted supra, Johnson’s original petition attacked the

sentences rendered by the Circuit Court of Clarke County, Alabama

in connection with Johnson’s escape, burglary, and grand larceny

convictions. After Respondent challenged the timeliness of

Johnson’s petition, he filed a motion to voluntarily dismiss his

claims based on these earlier convictions, and sought permission to

amend his petition to attack an altogether different sentence

rendered by the Circuit Court of Houston County, Alabama in

connection with his attempted rape conviction. Generally,

permission to amend is to be liberally granted; however, Rule 2(e)

of the Rules Governing Section 2254 cases prohibits an inmate from

filing a habeas petition challenging judgments “of more than one

state court.” See Habeas Rule 2(e). In other words, a petitioner

seeking to challenge judgments issued by different state courts is

required to file a separate petition covering the judgment or

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In the instant action, Johnson did not directly appeal the

convictions or sentences rendered by the Circuit Court of Clarke

County; hence, those convictions became final when the 42 day

period to appeal provided for by Ala.R.App.P. 4(b)(1) expired,

that is, on March 28, 1973. Because Johnson’s conviction became

final prior to enactment of the AEDPA, his petition for habeas

corpus relief should have been filed no later than April 23,

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judgments of each court. Because Johnson filed this action

challenging a judgment rendered by the Circuit Court of Clarke

County, Alabama, he is required to file a separate action if he now

desires to challenge a different judgment issued by a different

court, namely the Circuit Court of Houston County. See generally

Long v. Warden, Warren Corr. Institution, 2009 U.S. Dist. LEXIS

89485, 2009 WL 3169964 (S.D. Ohio Sept. 28, 2009) (“different

challenge should be raised in a separate petition, since Habeas Rule

2 provides that a petitioner who seeks relief from different

judgments must file a separate petition covering each separate

judgment. See Habeas Rule 2(e); accord George v. Smith, 507 F.3d

605, 607 (7th Cir. 2007) ("Unrelated claims against different

defendants belong in different suits, not only to prevent the sort

of morass that a [multi]-claim, [multi]-defendant suit produced but

also to ensure that prisoners pay the required filing fees ...”);

See also Mansanares v. Arpaio, 2009 U.S. Dist. LEXIS 123398 (D.

Ariz. Dec. 16, 2009); Goodson v. Boyd, 2008 U.S. Dist. LEXIS 80963

(M.D. Ala. Oct. 1, 2008). Accordingly, the undersigned recommends

that Plaintiff’s Motion to Voluntarily Dismiss the claims in his

original petition be granted as they are time-barred2

, and that his

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1997. As noted, Johnson’s instant habeas corpus petition was not

filed in this Court until March 7, 2007, almost ten (10) years

after the statutory deadline had expired. Moreover, although

Johnson filed Rule 32 petitions, they did not toll the

limitations period because neither was properly filed, nor were

they pending during the running of the one year limitation

period. Therefore, statutory tolling of the habeas limitations

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

Johnson’s federal habeas petition was untimely filed. Johnson has

not alleged the existence of extraordinary circumstances beyond

his control that prevented him from filing a timely federal

petition, nor has he met the heavy burden of showing that he

exercised reasonable diligence in prosecuting his claims and in

bringing forth his habeas petition. Further, Johnson has also

failed to allege, let alone offer, any evidence that suggests

that he is actually innocent of the offenses for which he was

convicted. Consequently, Johnson is not entitled to the

equitable tolling of the AEDPA’s statutory limitations period for

habeas petitions based on a “miscarriage of justice” or any other

reason.

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In light of the instant Report and Recommendation,

Johnson’s “Request for Answer from Respondents to Procedural

Default and Amended Claims” (Doc. 19) and Petition for Writ of

Mandamus (Doc. 21) are MOOT.

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Motion to Amend and his Motion to Transfer be DENIED pursuant to

Habeas Rule 2(e). To the extent Johnson seeks to challenge the

judgment rendered by the Circuit Court of Houston County, he should

file a new federal habeas petition with the District Court for the

Middle of Alabama, which is where he is presently incarcerated and

where his attempted rape conviction and sentence arose. 

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.3

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DONE this 26th day of February, 2010. 

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE 

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The Court’s Local rules are being amended to reflect the new

computations of time as set out in the amendments to the Federal Rules

of Practice and Procedure, effective December 1, 2009.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen days of the date of service of

this document, file specific written objections with the Clerk of this

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); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). 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 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 days4 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 (14) 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

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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.

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