IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

THOMAS BURNS, : 

 : 

 Petitioner. : 

 : 

vs. : CIVIL ACTION 09-834-CB-M 

 : 

LOUIS BYRD, : 

 : 

 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 Louis Byrd and against Petitioner Thomas Burns 

pursuant to 28 U.S.C. § 2244(d). 

 Petitioner pled guilty and was convicted of second degree 

possession of a forged instrument in the Circuit Court of Mobile 

County on November 6, 2002 for which he received a split 

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sentence of fifteen years with three years to be served in the 

state penitentiary (Doc. 8, pp. 2). On February 4, 2003, the 

Alabama Court of Criminal Appeals dismissed Burns's appeal as 

being untimely filed (Doc. 17, Exhibit A). A certificate of 

judgment was entered on the same date (see Doc. 17, Exhibit B). 

 Petitioner filed his third Rule 32 petition1 on December 12, 

20082 (Doc. 17, Exhibit B, p. 1). Following the denial of the 

petition by the lower court, the Alabama Court of Criminal 

Appeals affirmed the denial, finding the claims to be 

procedurally barred because they had not been filed within the 

statutorily-required one year period of limitations (Doc. 17, 

Exhibit B).3

 

 Petitioner filed a complaint with this Court on December 

22, 20094

 raising a single claim: His attorney transferred 

restitution from a nolle prossed claim to an active case without 

 1 Neither Petitioner nor Respondent has provided information 

regarding the first two Rule 32 petitions; Respondent has suggested 

that the first two were irrelevant to this proceeding (see Doc. 17, p. 

2). That suggestion would appear to be correct. 

2 Though Petitioner asserted that this Rule 32 was filed on 

November 8, 2008, state court records indicate that it was filed on 

December 12, 2008 (Doc. 8, p. 4; cf. Doc. 17, Exhibit B, p. 1). 3

 The Court notes that the Alabama Court of Criminal Appeals 

found the claims to be procedurally barred on other grounds and to be 

without merit as well. 

4

Respondent states that Petitioner did not file this complaint 

until February 4, 2010 (Doc. 17, p. 4). While Burns did not execute a 

petition which was in the form this Court requires until that date 

(Doc. 8), Petitioner initiated this action on December 22, 2009 with 

the filing of a form used by this Court (Doc. 1). 

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Burns's consent (Doc. 8). 

 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. 17, pp. 4-6). Respondent 

refers to provisions of the Anti-Terrorism and Effective Death 

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

pertinent part, 28 U.S.C. § 2244, which 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. United States, 151 F.3d 1335, 1336 (11th

Cir. 1998). 

 The State Court Order of restitution which Petitioner is 

challenging was entered on October 25, 2007 (Doc. 8, p. 10; cf.

Doc. 17, p. 5).5

 This means that any challenge to that Order, in 

this Court, would have had to have been filed no later than 

 5

 The Court notes that the situation presented in this action is 

unusual in that Burns is challenging a post-conviction order rather 

than a conviction. For that reason, the limitations clock did not 

begin to run until the date of that order. 

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October 25, 2008. 

 As noted earlier, Petitioner’s habeas corpus petition was 

not filed in this Court until December 22, 2009, more than a 

year after the limitations period had expired. Burns had filed 

a Rule 32 petition in the State Court on December 12, 2008, more 

than a month after the limitations period had expired in both 

this Court as well as the State Courts. 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). Petitioner’s Rule 32 petition was filed too late to toll 

the statute. 

 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 (Doc. 19) for ignoring the dictates of 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 Louis Boyd and 

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against Petitioner Thomas Burns pursuant to 28 U.S.C. § 2244(d). 

 MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS 

 AND RESPONSIBILITIES FOLLOWING RECOMMENDATION 

 AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or 

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

this document, file specific written objections with the clerk 

of 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 days 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 

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can be appealed. 

2. 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 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. 

 DONE this 16th day of August, 2010. 

 s/BERT W. MILLING, JR. 

 UNITED STATES MAGISTRATE JUDGE

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