1Petitioner states that he was convicted of burglary second and

third degree and receiving stolen property in the first, second, and

third degree (Doc. 1, pp. 2-3). Respondent, however, references

only the conviction for burglary second degree and provides exhibits

from that conviction (Doc. 12, p. 1). 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GEORGE HERROD, JR., : 

Petitioner, : 

v. : CIVIL ACTION 05-0118-CB-M

CHERYL PRICE, : 

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 Cheryl Price and against

Petitioner George Herrod, Jr. pursuant to 28 U.S.C. § 2244(d).

Petitioner was convicted of burglary in the second degree1

in the Circuit Court of Perry County on September 20, 1995 for

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2The Court notes that the lengthy delay between the trial and

appellate court decisions occurred when the original trial court

decision was set aside because the hearing transcript could not be

found; a second hearing was held and, again, Herrod’s petition was

denied (see Doc. 12, pp. 3-5).

2

which he received a sentence of life in the state penitentiary

(Doc. 1, pp. 2-3; see Doc. 12, Exhibit RX-1). Herrod did not

appeal his conviction or sentence (Doc. 1, p. 3; Doc. 12,

Exhibit RX-1). 

Petitioner filed a State Rule 32 petition on May 20, 1997

(see Doc. 12, Exhibit RX-2, p. 23). Herrod later filed a

motion to withdraw that petition which was granted in open

court on September 8, 1997 (see Doc. 12, Exhibit RX-3, p. 36). 

Petitioner filed a second Rule 32 petition on October 29,

1999 (Doc. 12, Exhibit RX-3, pp. 5-12) which was denied on

December 28, 2000 (id. at pp. 27-28). On September 24, 2004,

the Alabama Court of Criminal Appeals affirmed the lower

court’s dismissal of the petition (Doc. 12, Exhibit RX-1).2

On January 7, 2005, the Alabama Supreme denied certiorari and

issued a certificate of judgment (Doc. 12, Exhibit RX-9). 

Petitioner filed a complaint with this Court on February

25, 2005 raising the following claims: (1) Herrod was

illegally sentenced; and (2) he received ineffective

assistance of counsel (Doc. 1). Respondent has answered the

petition, arguing that it should be dismissed as it was not

Case 2:05-cv-00118-CB-M Document 14 Filed 07/27/05 Page 2 of 6
3Petitioner has also asserted that the claims raised in this

action are procedurally defaulted (Doc. 12, pp. 9-11). However,

because the Court ultimately finds that this action is time-barred,

there is no need to discuss whether the claims are also procedurally

barred under State law.

4“In a criminal case a notice of appeal by the defendant shall

be filed with the clerk of the trial court within 42 days (six weeks)

after pronouncement of the sentence, provided that the notice of

appeal may be oral, as provided in Rule 3(a)(2).” 

3

filed within the one-year statute of limitations period (Doc.

12, pp. 7-9).3 Respondent refers to provisions of the AntiTerrorism and Effective Death Penalty Act of 1996 (hereinafter

AEDPA) which 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.

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 October 1, 1995,

forty-two days after he was convicted. Ala.R.App.P. 4(b)(1).4

At that point, the AEDPA statute of limitations clock began to

run. 

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5On June 30, 2005, this Court ordered Herrod to show cause, not

later than July 20, 2005, why this action should not be dismissed as

time-barred (Doc. 13). As of this date, Petitioner has not responded

to that order.

4

Petitioner’s habeas corpus petition was not filed in this

Court until February 25, 2005, more than eight years after the

limitations period expired. Petitioner had filed a Rule 32

petition in state court on May 20, 1997, more than seven

months after the limitations period expired. 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

well 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 Anti-Terrorism and Effective Death Penalty Act of 1996.5

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 Cheryl Price and

against Petitioner George Herrod, Jr. pursuant to 28 U.S.C. §

Case 2:05-cv-00118-CB-M Document 14 Filed 07/27/05 Page 4 of 6
5

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 can be appealed.

Case 2:05-cv-00118-CB-M Document 14 Filed 07/27/05 Page 5 of 6
6

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 27th day of July, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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