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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIE ARTHUR SULLEN, :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 14-0112-CG-M

 :

CYNTHIA STEWARD, :

 :

Respondent. :

REPORT AND RECOMMENDATION

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

inmate which 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 Cynthia Steward and against Petitioner Willie 

Arthur Sullen 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.

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Petitioner was convicted of first-degree domestic violence

in the Mobile County Circuit Court on May 26, 2010 for which he 

received a sentence of twenty-five years in the state 

penitentiary (Doc. 1, p. 2). On appeal, the Alabama Court of 

Criminal Appeals affirmed the conviction (Doc. 10, Exhibit A). 

Sullen sought neither a rehearing in the Alabama Court of 

Criminal Appeals nor certiorari in the Alabama Supreme Court 

(see Doc. 1, p. 3). The certificate of final judgment was 

entered on March 9, 2011 (Doc. 10, Exhibit C).

Petitioner filed a Rule 32 petition on August 25, 2011 in 

the Mobile County Circuit Court (see Doc. 1, p. 4). On July 1, 

2012, Sullen filed a petition for writ of mandamus with the 

Alabama Court of Criminal Appeals, asking it to get the Circuit 

Court to rule on his Rule 32 petition (Doc. 10, Exhibit E; see 

also Doc. 10, p. 3). On September 7, 2012, the Appellate Court 

denied the mandamus petition, finding that the Circuit Court 

Judge had denied Sullen’s request for in forma pauperis status 

on September 26, 2011 and that, because Petitioner had never 

paid a filing fee, the Rule 32 petition had not been properly 

filed (Doc. 10, Exhibit F). On November 28, 2012, Sullen filed 

a second petition for writ of mandamus, seeking again, to get 

the lower court to rule on his Rule 32 (Doc. 10, Exhibits D, G). 

On February 7, 2013, the Alabama Court of Criminal Appeals 

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denied the petition, again, for the same reasons it had set out 

in its first denial (see Doc. 10, Exhibit H). On March 3, 2014, 

Sullen’s petition for certiorari was struck by the Alabama 

Supreme Court for his failure to comply with Court rules (Doc. 

10, Exhibit I).

Petitioner filed a complaint with this Court on March 5, 

2014 raising the following claims: (1) His attorney rendered 

ineffective assistance; and (2) the State Courts improperly 

dismissed his Rule 32 petition after failing to rule on it for 

more than two years (Doc. 1). 

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. 10, pp. 5-8). 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.

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28 U.S.C. § 2244(d)(1)(A). The AEDPA became effective on April 

24, 1996. Goodman v. United States, 151 F.3d 1335, 1336 (11th

Cir. 1998). 

Petitioner’s conviction became final on March 9, 2011, the 

day on which the certificate of final judgment was entered (see

Doc. 10, Exhibit C). However, because Sullen had ninety days in 

which to seek direct review of his conviction in the United 

States Supreme Court, those ninety days do not count against 

him—whether he actually sought review or not. See Coates v. 

Byrd, 211 F.3d 1225, 1226-1227 (11th Cir. 2000) cert. denied, 

531 U.S. 1166 (2001). Petitioner’s last opportunity to seek 

certiorari in this country’s highest court was June 7, 2011, so 

the AEDPA clock began to run the next day. 

Petitioner’s habeas corpus petition was not filed in this 

Court until March 5, 2014, nearly thirty-three months after the 

AEDPA clock began to run. This means that it was filed nearly 

twenty-one months too late. 

Sullen had filed a Rule 32 petition in State court on 

August 25, 2011. This filing occurred before the one-year AEDPA 

limitations period had run. The Court notes that AEDPA states 

that “[t]he time during which a properly filed application for 

State post-conviction or other collateral review with respect to 

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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)(2). 

However, as indicated in the rulings of the Alabama Court 

of Criminal Appeals in denying Sullen’s mandamus petitions, his 

Rule 32 was not properly filed because he did not pay the filing 

fee (Doc. 10, Exhibits F, H). The United States Supreme Court 

has held the following: 

[A]n application [for state postconviction 

or other collateral review] is “properly 

filed” when its delivery and acceptance are 

in compliance with the applicable laws and 

rules governing filings. These usually 

prescribe, for example, the form of the 

document, the time limits upon its delivery, 

the court and office in which it must be 

lodged, and the requisite filing fee. 

Artuz v. Bennett, 531 U.S. 4, 8 (2000) (citations and footnote 

omitted). 

The Court finds that Artuz supports the Government’s 

argument that Sullen’s Rule 32 petition was not properly filed. 

Therefore, the actual filing of the Rule 32, as it was not 

proper as defined by State rules, did not toll the AEDPA clock.

The Court notes that Sullen, in rebuttal, has argued that 

the filing fee for the State Rule 32 petition was paid on 

December 12, 2012 (Doc. 1, p. 12; Doc. 12, p. 2). The Court 

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finds, however, that although this may well be true, the AEDPA 

clock’s one-year limitation period ran on June 7, 2012. 

Therefore, the fee was filed too late for Sullen to take 

advantage of the tolling provisions.

Clearly, Petitioner’s habeas corpus petition was filed 

beyond the one-year limitations period and filed in violation of 

28 U.S.C. § 2244(d). The Court finds that Petitioner has 

provided no cause for ignoring the dictates of the AntiTerrorism 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 Cynthia Steward and 

against Petitioner Willie Arthur Sullen 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 

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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 

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 Sullen 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 Petitioner 

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 

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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 

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 10th day of July, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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