IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JUSTIN DERON COLEMAN, :

AIS 216124,

:

Petitioner,

:

vs. CA 15-0337-WS-C

:

JUDGE BEN BROOKS, et al.,

:

Respondents.

REPORT AND RECOMMENDATION

Justin Deron Coleman, a state prisoner presently incarcerated at the Bibb 

Correctional Facility in Brent, Alabama, has petitioned this Court for federal habeas 

corpus relief pursuant to 28 U.S.C. § 2254. This matter has been referred to the 

undersigned for the entry of a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B) and General Local Rule 72(a)(2)(R). It is recommended that the instant 

petition be dismissed as time barred under the Anti-Terrorism and Effective Death 

Penalty Act’s one-year limitations provision contained in 28 U.S.C. § 2244(d). 

FINDINGS OF FACT

On May 18, 2004, petitioner entered a counseled guilty plea to second-degree 

domestic violence in the Circuit Court of Mobile County, Alabama. (Doc. 24, Exhibits 1 

& 2.) Coleman was sentenced, that same day, to a 20-year term of imprisonment; he was 

ordered to serve five years in prison with the remainder of the sentence suspended 

pending his successful completion of five years probation. (See Doc. 24, Exhibit 1, Case 

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Action Summary Sheet.) Coleman nowhere gives any indication that he appealed his

second-degree domestic abuse conviction or sentence. (See Doc. 13.)

Coleman was granted probation on October 9, 2008, and, on June 25, 2013, he 

was charged by his probation officer with failing to report and failing to pay the fees 

associated with his probation. (Doc. 24, Exhibit 7, OFFICER’S REPORT ON 

DELINQUENT PROBATIONER.) On July 30, 2013, Coleman appeared before Mobile 

County Circuit Judge Ben Brooks and, with appointed counsel, confessed the 

revocation; his probation was partially revoked and he was remanded to the custody of 

the Mobile Metro Jail to serve ninety (90) days. (Doc. 24, Exhibit 8, ORDER.) However, 

by order dated September 12, 2013, Judge Brooks vacated and set aside his order 

entered on July 30, 2013, on the basis that the sentence contained in the order had been 

“adjudged an illegal sentence[.]” (Doc. 24, Exhibit 10, ORDER.) Thereafter, on 

September 19, 2013, Coleman appeared before Judge Brooks for a probation revocation 

hearing, during which testimony was taken and arguments heard. (Doc. 24, Exhibit 11, 

ORDER.) The following day, Judge Brooks entered an order revoking petitioner’s 

probation, same reading, in relevant part, as follows:

Probation Officer Marquita Williams testified that the Defendant failed to 

report and to pay supervision fees.

The Court finds that the Defendant has violated the terms and conditions 

of his probation by failure to report and failure to pay supervision fees.

The Court orders the Defendant’s probation fully revoked.

The Defendant is remanded into the custody of the Alabama Department 

of Corrections to serve the remainder of his sentence.

The Defendant is to be given credit for time served.

(Id.) Coleman filed several post-revocation motions in the Circuit Court of Mobile 

County, Alabama (see Doc. 24, Exhibits 12 & 13); however, both motions were denied by 

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order dated October 16, 2013 (Doc. 24, Exhibit 14, ORDER). Petitioner did not appeal the 

revocation of his probation. (See Doc. 13, at 3 (reflecting Coleman’s notation that he did 

not appeal and commenting that he was “under [the] impression that court appointed 

attorney Robert Hagler Jr. were filing the appeal but found out none was filed.”).)

Coleman initially filed his federal habeas corpus action in the Northern District 

of Alabama on April 20, 2015 (compare Doc. 1, at 4 with Doc. 26) and, on August 13, 2015, 

followed the undersigned’s instructions by raising his claims on this Court’s form § 

2254 petition (see Doc. 13). Based upon the grounds for relief stated in the petition filed 

on this Court’s form, it is clear that Coleman is solely challenging the revocation of his 

probation because he avers as his date of judgment of conviction September 19, 2013, 

the date his probation was revoked, and otherwise only makes references to his 

probation revocation proceedings. (See id., at 2-42.)

CONCLUSIONS OF LAW

A. Statute of Limitations.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was 

enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 

U.S.C. 2244 providing for a one-year period of limitations within which state prisoners 

must file their habeas corpus petitions pursuant to 28 U.S.C. § 2254. Wilcox v. Florida 

Dept. of Corrections, 158 F.3d 1209, 1210 (11th Cir. 1998).

(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 

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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). 

Subsections (B), (C), and (D) of § 2244(d)(1) clearly do not apply to petitioner’s 

case and, therefore, the timeliness of Coleman’s petition must be calculated under § 

2244(d)(1)(A) based upon “the date on which the judgment became final by the 

conclusion of direct review or the expiration of time for seeking such review[.]” Id.; see 

Scott v. Duffy, 372 Fed.Appx. 61, 62 (11th Cir. Apr. 5, 2010)1 (applying § 2244(d)(1)(A) in 

the context of a challenge to revocation of probation). Under Alabama law, a defendant 

has 42 days to file an appeal challenging the revocation of probation. Compare Bullard v. 

Giles, 2009 WL 1395428, *1 (M.D. Ala. May 18, 2009) (citing Rule 4(b)(1) of the Alabama 

Rules of Appellate Procedure and finding that a petitioner has 42 days after his 

 1 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir. R. 36-2.

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probation was revoked to seek direct review, that is, appeal his probation revocation) 

with Wank v. State, 18 So.3d 972, 973-974 (Ala.Crim.App. 2009) (finding a defendant has 

42 days from the date his probation is revoked to file a notice of appeal) and Davis v. 

State, 644 So.2d 44 (Ala.Crim.App. 1994) (finding notice of appeal of revocation of 

probation untimely where it was filed more than 42 days after the probation 

revocation). No appeal was filed in Coleman’s case after his probation was fully 

revoked by Mobile County Circuit Judge Ben Brooks on September 19/20, 2013. 

Therefore, the judgment of the Circuit Court of Mobile County, Alabama became final 

42 days later on November 1, 2013. 

Coleman’s one-year period of limitations under AEDPA began to run on 

November 1, 2013 and expired on November 1, 2014, some five and one-half months 

before he initially filed the instant habeas corpus petition in the Northern District of 

Alabama on April 20, 2015. Petitioner is unable to take advantage of the tolling 

provision built into § 2244(d), 28 U.S.C. § 2244(d)(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 section.”); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir. 1999) 

(“‘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 in [subsection (d)].’”), cert. denied, 528 U.S. 

1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000), because he never filed a Rule 32 petition 

collaterally attacking the revocation of his probation (see Doc. 13, at 3-4 (referencing 

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only the instant habeas corpus petition which he initiated in the Northern District of 

Alabama)). Accordingly, the only avenue by which this Court can consider the merits of 

petitioner’s § 2254 petition is by finding that he is entitled to equitable tolling of 

AEDPA’s one-year limitations period.

In Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), the 

Supreme Court specifically held, for the first time, that “§ 2244(d) is subject to equitable 

tolling in appropriate cases[,]” id. at 645, 130 S.Ct. at 2560, and reiterated “that a 

‘petitioner’ is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been 

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his 

way’ and prevented timely filing.” Id. at 649, 130 S.Ct. at 2562. For its part, the Eleventh 

Circuit has long embraced the doctrine of equitable tolling with regard to the one-year 

limitations period at issue: “Equitable tolling is to be applied when ‘“extraordinary 

circumstances” have worked to prevent an otherwise diligent petitioner from timely 

filing his petition.’ . . . Thus, the petitioner must show both extraordinary circumstances 

and due diligence in order to be entitled to equitable tolling.” Diaz v. Secretary for the 

Dept. of Corrections, 362 F.3d 698, 700-701 (11th Cir. 2004) (citation omitted). “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.’” Steed v. Head, 219 F.3d 

1298, 1300 (11th Cir. 2000) (citation omitted). Thus, the one-year limitations provision 

need not be equitably tolled unless there is evidence that “extraordinary circumstances”

beyond petitioner’s control made it impossible for him to file his petition on time. See 

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Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618-619 (3rd Cir. 1998) 

(“[E]quitable tolling is proper only when the ‘principles of equity would make [the] 

rigid application [of a limitation period] unfair.’ . . . Generally, this will occur when the 

petitioner has ‘in some extraordinary way . . . been prevented from asserting his or her 

rights.’ . . . The petitioner must show that he or she ‘exercised reasonable diligence in 

investigating and bringing [the] claims.’ . . . Mere excusable neglect is not sufficient.”). 

The Supreme Court in Holland indicated that “[t]he diligence required for equitable 

tolling purposes is reasonable diligence, not maximum feasible diligence[,]” id. at 653, 

130 S.Ct. at 2565, and gave the following guidance with respect to “extraordinary 

circumstances”:

We have previously held that “a garden variety claim of excusable 

neglect,” such as a simple “miscalculation” that leads a lawyer to miss a 

filing deadline, does not warrant equitable tolling. But the case before us 

does not involve, and we are not considering, a “garden variety claim” of 

attorney negligence. Rather, the facts of this case present far more serious 

instances of attorney misconduct. And, as we have said, although the 

circumstances of a case must be “extraordinary” before equitable tolling 

can be applied, we hold that such circumstances are not limited to those 

that satisfy the test that the Court of Appeals used in this case.

The record facts that we have set forth in Part I of this opinion 

suggest that this case may well be an “extraordinary” instance in which 

petitioner’s attorney’s conduct constituted far more than “garden variety” 

or “excusable neglect.” To be sure, Collins failed to file Holland’s petition 

on time and appears to have been unaware of the date on which the 

limitations period expired-two facts that, alone, might suggest simple 

negligence. But, in these circumstances, the record facts we have 

elucidated suggest that the failure amounted to more: Here, Collins failed 

to file Holland’s federal petition on time despite Holland’s many letters 

that repeatedly emphasized the importance of his doing so. Collins 

apparently did not do the research necessary to find out the proper filing 

date, despite Holland’s letters that went so far as to identify the applicable 

legal rules. Collins failed to inform Holland in a timely manner about the 

crucial fact that the Florida Supreme Court had decided his case, again 

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despite Holland’s many pleas for that information. And Collins failed to 

communicate with his client over a period of years, despite various pleas 

from Holland that Collins respond to his letters. 

Id. at 651-652, 130 S.Ct. at 2564. It is also clear that a federal court can consider the merits 

of an untimely § 2254 motion if the petitioner establishes that he is factually innocent of 

the crime for which he was convicted. Compare McQuiggin v. Perkins, U.S. , 

133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013) (“[A]ctual [factual] innocence, if proved, 

serves as a gateway through which a petitioner may pass whether the impediment is a 

procedural bar . . . or, as in this case, expiration of the statute of limitations.”) with San 

Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.) (“The actual innocence exception is 

‘exceedingly narrow in scope,’ and the petitioner must demonstrate that he is factually 

innocent rather than legally innocent.”), cert. denied, U.S. , 132 S.Ct. 158, 

181 L.Ed.2d 73 (2011).

2

In this case, petitioner has not established that the instant habeas corpus petition 

was timely filed nor has he established that extraordinary circumstances and due 

diligence counsel equitable tolling of the limitations period. See Spottsville v. Terry, 476 

F.3d 1241, 1245 (11th Cir. 2007) (“‘The burden of establishing entitlement to this 

extraordinary remedy plainly rests with the petitioner[.]’”). Coleman makes no 

equitable tolling argument in his response to the undersigned’s order entered on 

February 22, 2016 (see Doc. 27, at 1-3; compare id. with Doc. 26, at 1-2); however, in his 

habeas corpus petition filed in this Court’s form on August 14, 2015, he suggests that he 

 2 As related to Coleman’s revocation of probation, the undersigned reads Supreme 

Court and Eleventh Circuit precedent as requiring petitioner to establish that he is factually 

innocent of the grounds upon which his probation was revoked.

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is entitled to equitable tolling of the limitations period because he was “under the 

assumption” that his court-appointed attorney had filed paperwork “for a habeas 

corpus/appeal”. (Doc. 13, at 11.) He also argues that he is entitled to equitable tolling 

based upon his ignorance of the law and “necessary procedure[s] to take[.]” (Id.)

Although the undersigned finds a bit incredulous Coleman’s “assumption” that 

his court-appointed attorney for his revocation proceedings had filed the paperwork 

“for a habeas corpus3/appeal,” since only petitioner filed any actual written pleading 

related to his revocation proceedings in the Circuit Court of Mobile County, Alabama 

(see Doc. 24, Exhibits 9 & 12-13), “at best” his “assumption” in this regard raises the 

specter of “simple negligence” on counsel’s part, not the type of egregious attorney 

misconduct set forth in Holland, supra. Indeed, the Supreme Court recognized in 

Holland, “[m]ere attorney negligence will not justify a grant of equitable tolling.” Ryder 

v. Secretary, Department of Corrections, 521 Fed.Appx. 817, 819 (11th Cir. Jun. 6, 2013), 

citing Holland, 550 U.S. at 651-652, 130 S.Ct. at 2564. Thus, Coleman’s implicit argument 

that his attorney failed to file an appeal of his probation revocation, and to inform him 

of this fact, amounts to no more than simple negligence, certainly not the egregious 

attorney misconduct outlined in Holland warranting equitable tolling, particularly given 

the clear evidence of record that Coleman violated the conditions of his probation. Cf. 

 3 The attorney appointed by the Circuit Court of Mobile County, Alabama was not 

appointed for the purpose of assisting plaintiff in filing his federal habeas corpus petition, see 

Lawrence v. Florida, 549 U.S. 327, 337, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (recognizing 

that prisoners have no constitutional right to counsel in the post-conviction context); instead, he 

was appointed simply to assist Coleman with his revocation proceedings (see Doc. 24, Exhibits 

6-8, 10-11 & 14). Accordingly, petitioner has no basis to argue that he “assumed” his 

court-appointed counsel was going to file the instant habeas corpus petition. 

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Scott, supra, 372 Fed.Appx. at 63 (“Scott’s allegations that his attorney failed to file an 

appeal of his probation revocation, and to inform him of this fact, does not constitute 

egregious attorney misconduct warranting equitable tolling. Far from constituting bad 

faith or dishonesty, Scott’s decision not to appeal the probation revocation was a purely 

tactical one, especially in light of Scott’s admission of guilt as to the probation 

revocation offense.”). Accordingly, Coleman is not entitled to equitable tolling of the 

limitations period based on this argument.

In addition, Coleman’s references to his pro se status and an inability to grasp

legal principles/”necessary procedure[s] to take” simply do not equate to circumstances 

sufficient to warrant equitable tolling of the one-year limitation period. Terry v. Hurley, 

2014 WL 1660708, *2 (M.D. Ala. Mar. 10, 2014) (“[I]t is well settled that an inmate’s lack 

of legal knowledge, the denial of access to a law library, his failure to understand legal 

principles and/or the inability to recognize potential claims for relief at an earlier 

juncture do not constitute extraordinary circumstances sufficient to warrant equitable 

tolling of the limitation period.”); see also Gardner v. Walker, 2005 WL 1127137, *1 (M.D. 

Ga. May 7, 2005) (“‘Ignorance of the law is no excuse; it is not a reason for equitable 

tolling.’ . . . Here, Petitioner’s Objection is without merit because his ignorance of 

AEDPA’s limitations period fails to amount to ‘extraordinary circumstance[s]’ for 

equitable tolling purposes.”); see Teel v. Farrell, 2006 WL 1148817, *4 (M.D. Ala. Apr. 28, 

2006) (“[A]n inmate’s status as a pro se litigant does not warrant equitable tolling.”).

In light of the foregoing, the undersigned concludes that nothing other than 

Coleman’s own lack of due diligence is responsible for the untimeliness of the filing of 

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the instant petition. This is simply not one of those rare cases in which principles of 

equitable tolling can save petitioner from AEDPA’s one-year limitations period.4

B. Certificate of Appealability. 

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

recommends that a certificate of appealability 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 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 on procedural grounds 

without reaching the merits of the underlying constitutional claims, “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, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 

542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 

(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 

 4 Coleman has not demonstrated that he is factually innocent of the bases upon 

which his probation was revoked—that is, failure to report and pay supervision fees—and, 

therefore, this Court cannot consider the merits of his untimely petition. See McQuiggin v. 

Perkins, supra; San Martin, supra.

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been resolved in a different manner or that the issues presented were “adequate to 

deserve encouragement to proceed further.”’”). Inasmuch as equitable tolling is an 

extraordinary remedy which the Eleventh Circuit has rarely granted, see Diaz v. 

Secretary for Dep’t of Corrections, 362 F.3d 698, 701 (11th Cir. 2004) (“[T]his court has 

rejected most claims for equitable tolling.”), a reasonable jurist could not conclude 

either that this Court is in error in dismissing the instant petition or that Coleman

should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 

(“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.”). 

Rule 11(a) further provides: “Before entering the final order, the court may direct 

the parties to submit arguments on whether a certificate should issue.” If there is an 

objection to this recommendation by either party, that party may bring this argument to 

the attention of the district judge in the objections permitted to this report and 

recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit 

order denying petitioner’s motions for a COA and to appeal IFP in a case in which this 

Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 

3241817, *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report & 

recommendation adopted by 2011 WL 3241580 (S.D. Ala. July 29, 2011); Griffin v. DeRosa, 

2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report 

& recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 

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5, 2010).

CONCLUSION

The Magistrate Judge recommends that Justin Deron Coleman’s petition for writ 

of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed as time-barred under 

§ 2244(d). Coleman is not entitled to a certificate of appealability and, therefore, 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. 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 

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incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 7th day of June, 2016.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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