IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TROY T. POPE, AIS# 00278311, )

Petitioner, )

)

v. ) CIVIL ACTION NO. 15-00102-WS-N

)

CYNTHIA STEWART, Warden, )

Fountain Correctional Facility, )

Respondent. )

REPORT AND RECOMMENDATION

Petitioner Troy T. Pope (“Pope”), an Alabama prisoner proceeding pro se, has 

filed a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. 

§ 2254 (Doc. 1) on February 19, 2015,1 challenging his criminal conviction in the Circuit 

Court of Mobile County, Alabama, Case Nos. CC-10-568 through -571.2 The 

Respondent has not yet been served with the petition. On March 9, 2015, Pope filed a 

motion to voluntarily dismiss his habeas petition without prejudice (Doc. 4), claiming 

that he has not yet exhausted in state court the claims raised in his petition. Under SD 

ALA Local Rule 72.2(c)(4), this matter has been referred to the undersigned United 

States Magistrate Judge for entry of a report and recommendation as to the 

appropriate disposition pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Rule 8(b) of the 

Rules Governing Section 2254 Cases in the United States District Courts.

 1 “Under the ‘prison mailbox rule,’ a pro se prisoner's court filing is deemed filed on the date 

it is delivered to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 

n.2 (11th Cir. 2009).

2 Because Pope challenges a conviction and sentence handed down in Mobile County, and 

because he filed his petition from Fountain Correctional Facility in Atmore, Alabama, both 

of which are within this judicial district, this Court has jurisdiction to entertain his habeas 

petition. See 28 U.S.C. § 2241(d).

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Pope’s petition represents that his conviction, which resulted in a sentence of “(3) 

life sentences plus 15 years,” was affirmed by the Alabama Court of Criminal Appeals 

on June 15, 2012, that his petition for rehearing with that court was denied (date 

unspecified), and that his petition for certiorari was denied (date and court unspecified). 

Pope also represents that he filed a collateral attack of his conviction under Alabama 

Rule of Criminal Procedure 32, which was dismissed on May 9, 2014.3 The claims for 

relief raised in Pope’s petition are (1) he is “actually and factually” innocent of the 

crimes for which he was convicted and (2) both his trial and appellate counsel were 

ineffective.

Federal Rule of Civil Procedure 41(a)(2) allows for voluntary dismissal of an 

action “by court order, on terms that the court considers proper.” While Pope is free to 

voluntarily dismiss his habeas petition without prejudice, he should be made aware 

that dismissal, even without prejudice, may foreclose future habeas review of his 

conviction.

Pope’s habeas petition is governed by the Anti-Terrorism and Effective Death 

Penalty Act of 1996, 28 U.S.C. § 2241 et seq. (“AEDPA”). See, e.g., San Martin v. 

McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). “AEDPA imposes a one-year statute of 

limitations on all federal habeas corpus petitions.” Id. (citing 28 U.S.C. § 2244(d)(1) (“A 

1–year period of limitation shall apply to an application for a writ of habeas corpus 

....”)). “This rule ‘serves the well-recognized interest in the finality of state court 

judgments’ and ‘reduces the potential for delay on the road to finality by restricting the 

 3 A search of “Troy Terrell Pope” in Alabama state court cases on WestlawNext reveals only 

one decision of the Court of Criminal Appeals, dismissing Pope’s appeal in “CR-10-1461” on 

August 3, 2011. Troy Terrell Pope v. State, 114 So.3d 174 (Table). A review of federal court 

records in the Public Access to Court Electronic Records (PACER) website indicates that 

this is Pope’s first and currently only habeas petition.

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time that a prospective federal habeas petitioner has in which to seek federal habeas 

review.’ ” Id. (citing Duncan v. Walker, 533 U.S. 167, 179 (2001)). Specifically, 

AEDPA’s statute of limitations provides:

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.

28 U.S.C. § 2244(d)(1).

Once the limitations period begins, “[t]he AEDPA clock continues to run until 

the individual seeking review files a state motion for post-conviction relief. Once the 

petitioner files a motion for post-conviction relief in state court, the AEDPA clock 

stops.” San Martin, 633 F.3d at 1266 (citing 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 subsection.”). However, “the filing of a petition for 

habeas corpus in federal court does not toll the statute of limitations...” Rhines v. 

Weber, 544 U.S. 269, 274-75 (2005).

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It is not clear from the information provided by Pope how much, if any, time he 

has left on his one-year limitations period to challenge his conviction. However, Pope 

should take this time limitation into consideration in deciding whether he still wishes 

to dismiss his present habeas petition.

Upon consideration, the undersigned RECOMMENDS that Pope’s motion to 

voluntarily dismiss without prejudice (Doc. 4) be GRANTED and that this action be 

DISMISSED without prejudice, unless Pope requests to withdraw the motion within 

the time allowed for objections to this recommendation, see infra.

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 the 18th day of March 2015.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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