IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RAY FRANK BALL, AIS 224928, :

Petitioner, :

vs. : CA 15-0362-KD-C

WARDEN GOURDY, :

Respondent.

REPORT AND RECOMMENDATION

Ray Frank Ball, a state prisoner presently in the custody of the respondent, has 

petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Doc. 

1.) 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), Fed. R. Civ. P. 72 and General L.

R. 72(b)(2)(R) (effective August 1, 2015). 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).1

FINDINGS OF FACT

Based on the allegations gleaned from the petition for writ of habeas corpus 

(Doc. 1), Ball was convicted on a charge of solicitation to commit murder in the Circuit 

Court of Mobile County, Alabama on August 18, 2005, and was sentenced to life 

imprisonment (see id. at 2). Ball’s conviction and sentence were affirmed on appeal, the 

Alabama Supreme Court finally denying his petition for writ of certiorari on July 14, 

 1 Based on the contents of this report and recommendation, petitioner’s motion to 

proceed without prepayment of fees and costs (Doc. 3) is DENIED.

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 1 of 14
2

2006 (see id. at 3-4). See Ball v. State, 976 So.2d 524 (Ala. Crim. App. Mar. 17, 2006) (table), 

reh’g denied, 978 So.2d 75 (Ala. Crim. App. Apr. 7, 2006) (table), cert. denied Ex parte Ball, 

992 So.2d 804 (Ala. Jul. 14, 2006) (table). And while petitioner avers that he collaterally 

attacked his conviction and sentence in the state courts of Alabama in March of 2006, 

and that collateral petition was denied on October 18, 2006 by the trial court (see Doc. 1, 

at 4-5), there is nothing in the instant habeas corpus petition which makes reference to 

any state collateral petition pursued by Ball after this Court dismissed his initial federal 

habeas corpus petition without prejudice so he could exhaust certain unexhausted 

claims he asserted in that initial petition (see Doc. 1), see Ball v. Ferrell, 2007 WL 1839135 

(S.D. Ala. Jun. 26, 2007). Indeed, Ball mentions in the instant habeas petition only the 

above-referenced Rule 32 petition which was denied on October 18, 2006 (Doc. 1, at 4-5), 

a date well before his initial habeas corpus petition was dismissed without prejudice, see 

Ball v. Ferrell, supra, and, moreover, suggests that he filed no “second” collateral state 

petition because he was sick (with pneumonia), the person helping him transferred to 

another prison, and he lacked legal knowledge or access to a person he could pay to 

help him (see Doc. 1, at 5 & 6).

Ball filed the instant petition in this Court on July 8, 2015 (Doc. 1, at 13), and 

therein raises the following claims: (1) ineffective assistance of counsel; (2) denial of the 

right to a fair trial; (3) the audio recordings and the recording device were not properly 

authenticated; and (4) his sentence falls outside the Court’s jurisdiction (see id. at 7-9). 

More importantly, in asserting that the one-year statute of limitations contained in 28 

U.S.C. § 2244(d) does not bar his habeas corpus petition, Ball claims that he is “actually 

innocent[]” of the crime for which he was convicted on August 18, 2015, that is, 

solicitation to commit murder. (Id. at 12.)

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 2 of 14
3

I’ve now served over 13 y[ea]rs in prison for something I just said. 

No crime was ever committed. Everything that was said was said in a 

drug induced state and taken out of context. . . . And if [the] police had not 

stepped in when they did no crime would have taken place.

(Id.) 

CONCLUSIONS OF LAW

A district court has the power under Rule 4 of the Rules Governing Section 2254 

Cases “to examine and dismiss frivolous habeas petitions prior to any answer or other 

pleading by the state.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999); see Jackson v. 

Secretary for the Department of Corrections, 292 F.3d 1347, 1349 (11th Cir. 2002) (“[W]e 

hold that the district court possessed the discretion to raise sua sponte the timeliness 

issue.”); Hill v. Braxton, 277 F.3d 701, 705 (4th Cir. 2002) (“Even though the limitations 

period is an affirmative defense, a federal habeas court has the power to raise 

affirmative defenses sua sponte, as the district court did in this case.”). Rule 4 provides, 

in pertinent part, that “[i]f it plainly appears from the petition and any attached exhibits 

that the petitioner is not entitled to relief in the district court, the judge must dismiss the 

petition and direct the clerk to notify the petitioner.” 28 U.S.C. foll. § 2254, Rule 4.

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 seeking such review; 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 3 of 14
4

(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 postconviction 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 Ball’s petition must be calculated under §

2244(d)(1)(A) based upon the date on which his solicitation to commit murder 

conviction became final. “For prisoners whose convictions became final prior to the 

effective date of the AEDPA, the one-year statute of limitations instituted by the 

AEDPA began to run on its effective date, i.e., April 24, 1996.” Guenther v. Holt, 173 F.3d 

1328, 1331 (11th Cir. 1999) (citations omitted), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 

145 L.Ed.2d 683 (2000). This rule from Guenther is obviously not applicable in this case 

since Ball’s conviction became final in 2006.

Section 2244(d)(1)(A) specifically provides that the one-year limitations period 

will run from “the date on which the judgment became final by the conclusion of direct 

review or the expiration of time for seeking such review[.]”In Bond v. Moore, 309 F.3d 

770 (2002) and Jackson, supra, the Eleventh Circuit joined the majority of circuits 

regarding the meaning of subsection (A) and held that the statute of limitations period 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 4 of 14
5

contained in 28 U.S.C. § 2244(d) does not begin to run “until the 90-day window during 

which Appellant could have petitioned the United States Supreme Court for a writ of 

certiorari expired.” 309 F.3d at 771; see also id. at 774 (“Appellant was entitled to file a 

petition for a writ of certiorari in the United States Supreme Court within 90 days of the 

entry of the judgment against him by the Florida Supreme Court. Sup.Ct.R. 13.1. The 

statute of limitations under 28 U.S.C. § 2244(d) should not have begun to run until this 

90-day window had expired. Appellant’s state judgment became final on December 13, 

1996, when the Florida Supreme Court denied Appellant’s motion for a rehearing. The 

statute of limitations should have begun to run, therefore, on March 13, 1997.”); Jackson, 

supra, 292 F.3d at 1348-1349 & 1349 (“While we have not directly dealt with the issue in 

the context of a section 2254 petition, we indicated in dicta that, under the AEDPA, a 

state prisoner may have the benefit of the 90-day window before his conviction is 

considered final. . . . In the instant case, the Fourth District Court of Appeals of Florida 

[] affirmed Jackson’s conviction on October 17, 1997. Giving Jackson the extra 90 days in 

which he could have filed for certiorari to the Supreme Court, Jackson’s conviction 

became final at the latest on January 15, 1998.”); see Pugh v. Smith, 465 F.3d 1295, 1299 

(11th Cir. 2006) (AEDPA’s one-year statute of limitations “allows a prisoner the time to 

seek direct review in the Supreme Court of the United States.”); Locke v. Saffle, 237 F.3d 

1269, 1273 (10th Cir. 2001) (“Under the statute, a petitioner’s conviction is not final and 

the one-year limitation period for filing a federal habeas petition does not begin to run 

until--following a decision by the state court of last resort--‘after the United States 

Supreme Court has denied review, or, if no petition for certiorari is filed, after the time 

for filing a petition for certiorari with the Supreme Court has passed.’”); Bronaugh v. 

Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (“[T]he one-year statute of limitations does not 

begin to run until the time for filing a petition for a writ of certiorari for direct review in 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 5 of 14
6

the United States Supreme Court has expired. A criminal defendant has only ninety 

days following the entry of judgment by the ‘state court of last resort’ in which to file a 

petition for a writ of certiorari.”); United States v. Torres, 211 F.3d 836, 839-840 (4th Cir. 

2000) (“In § 2244, Congress specifically stated that the one-year limitation period will 

run from the time that a state judgment becomes final ‘by the conclusion of direct 

review or the expiration of the time for seeking such review.’ . . . In using this phrase, 

Congress offered two dates from which its one-year limitation period can begin 

running: (1) at the conclusion of direct review or (2) at the expiration of time in which 

further direct review could have been sought, but was not. Congress, therefore, 

expressly provided an alternative starting date for its limitation period in the 

circumstance where a state defendant fails to seek further direct review of his 

conviction. The language Congress used, ‘by the conclusion of direct review or the 

expiration of the time for seeking such review,’ expands the period of time before the 

start of the limitation period for filing a habeas petition beyond the date that marks the 

conclusion of direct review of that judgment.”); Bowen v. Roe, 188 F.3d 1157, 1158-1159 

(9th Cir. 1999) (“We hold that the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) 

includes the period within which a petitioner can file a petition for a writ of certiorari 

from the United States Supreme Court, whether or not the petitioner actually files such 

a petition. Therefore, when a petitioner fails to seek a writ of certiorari from the United 

States Supreme Court, the AEDPA’s one-year limitations period begins to run on the 

date the ninety-day period defined by Supreme Court Rule 13 expires.”). Under the 

facts of this case, this Court need add the ninety days contemplated by Supreme Court 

Rule 13.1 since petitioner appealed his case to Alabama’s court of last resort on his 

direct appeal as of right. The Alabama Supreme Court denied Ball’s petition for writ of 

certiorari on July 14, 2006. See Ex parte Ball, supra. Ninety days added to this date 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 6 of 14
7

renders a beginning date for petitioner’s statute of limitations of October 12, 2006. Thus, 

Ball’s limitations period commenced on October 12, 2006 and expired on October 12, 

2007, see Guenther, supra, 173 F.3d at 1331, a few months shy of eight (8) years before he 

filed the instant § 2254 application.

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, supra, 173 F.3d at 1331 (“‘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)].’”), because—by his own admission (see Doc. 1, at 4-5)—he 

did not file any additional state collateral attacks on his conviction and sentence after 

his first Rule 32 petition was denied on October 18, 2006 and this Court dismissed his 

initial habeas corpus petition without prejudice on June 26, 2007 (that is, during the 

relevant limitations period), see Pace v. DiGuglielmo, 544 U.S. 408, 413, 125 S.Ct. 1807, 

1811-1812, 161 L.Ed.2d 669 (2005) (“As in Artuz, we are guided by the ‘common usage’ 

and ‘commo[n] underst[anding]’ of the phrase ‘properly filed.’ In common 

understanding, a petition filed after a time limit, and which does not fit within any 

exceptions to that limit, is no more ‘properly filed’ than a petition filed after a time limit 

that permits no exceptions. The purpose of AEDPA’s statute of limitations confirms this 

commonsense reading. On petitioner’s theory, a state prisoner could toll the statute of 

limitations at will by filing untimely state postconviction petitions. This would turn §

2244(d)(2) into a de facto extension mechanism, quite contrary to the purpose of AEDPA, 

and open the door to abusive delay.”); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.) 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 7 of 14
8

(“Under § 2244(d)(2), even ‘properly filed’ state-court petitions must be ‘pending’ in 

order to toll the limitations period. A state-court petition like Webster’s that is filed 

following the expiration of the limitations period cannot toll that period because there is 

no period remaining to be tolled.”), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 

454 (2000). 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, or, otherwise, by finding that he has established 

his factual innocence of the crime—solicitation to commit murder—for which he was 

convicted by a jury of his peers on August 18, 2005.

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 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 8 of 14
9

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 

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

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

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 9 of 14
10

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. See 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 sub nom. San Martin v. Tucker, U.S. , 132 S.Ct. 158, 181 L.Ed.2d 73 

(2011). 

Ball makes no argument that he is entitled to equitable tolling of the one-year 

limitations period, and since “there is nothing in the record to support its application[,]” 

Stevens v. United States, 2013 WL 3458152, *2 n.2 (N.D. Miss. Jul. 9, 2013),2 the 

undersigned is left with considering petitioner’s argument that ADEPA’s one-year 

limitations period is inapplicable because he is actually innocent of the crime for which 

he was convicted (Doc. 1, at 12). In making this argument, petitioner complains about 

being in prison for “something [he] just said” when “[n]o crime was ever committed.” 

(Id.) In McQuiggin v. Perkins, U.S. , 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013), the 

Supreme Court specifically held that “actual [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.” 133 S.Ct. at 1928. 

However, the Supreme Court also notably cautioned that “tenable actual-innocence 

gateway pleas are rare[.]” Id. (emphasis supplied). “’[A] petitioner does not meet the 

 2 Ball nowhere establishes that he pursued his rights diligently or that any 

extraordinary circumstances stood in his way and prevented him from filing a timely federal 

habeas corpus petition.

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 10 of 14
11

threshold requirement unless he persuades the district court that, in light of the new 

evidence, no juror, acting reasonably, would have voted to find him guilty beyond a 

reasonable doubt.’” Id., quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 868, 130 

L.Ed.2d 808 (1995) (other citation omitted). Here, of course, Ball makes no actual 

innocence argument because he has offered no new evidence establishing his actual 

(factual) innocence of solicitation to commit murder. Indeed, petitioner’s complaints

that “no crime” was committed and that he was convicted for things he merely “said” 

in a drug-induced state are specious inasmuch as it is clear under Alabama law that 

“the crime is the communication to another to commit a crime; no resulting action is 

necessary by the person being solicited.” Kimbrough v. State, 544 So.2d 177, 179 (Ala. 

Crim. App. 1989) (citations omitted). Thus, it is clear that petitioner cannot take 

advantage of the actual innocence gateway recognized in McQuiggin.

In short, the undersigned concludes that nothing other than Ball’s own lack of 

due diligence is responsible for the untimeliness of the filing of the instant petition. This 

is not one of those rare cases in which principles of equitable tolling can save petitioner 

from AEDPA’s one-year limitations period, nor has he established his actual innocence 

of the offense for which he was convicted by a jury of his peers. Thus, the undersigned 

simply recommends that this Court find Ball’s federal habeas petition decidedly timebarred. Cf. Justo v. Culliver, 317 Fed.Appx. 878, 881 (11th Cir. Aug. 21, 2008) (“Justo fails 

to show actual innocence to the offense to which he pleaded guilty. No error has been 

shown in the dismissal of Justo’s habeas petition as time-barred.”). 3

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

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

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 11 of 14
12

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 

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

deserve encouragement to proceed further.”’”). Inasmuch as a district court can raise 

sua sponte the AEDPA statute of limitations, Jackson, supra, 292 F.3d at 1349, within the 

context of Rule 4, Johnson v. Chase, 2006 WL 2949442, *1 (S.D. Ga. Oct. 16, 2006) (“Federal 

district courts are empowered pursuant to Rule 4 to raise the AEDPA’s statute of 

limitation sua sponte and dismiss those actions that are time barred.”), a reasonable jurist 

could not conclude either that this Court is in error in dismissing the instant petition or 

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

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 12 of 14
13

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 and 

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

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

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

Oct. 5, 2010). 

CONCLUSION

The Magistrate Judge recommends that Ray Frank Ball’s petition for writ of 

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

2244(d). Petitioner 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 

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 13 of 14
14

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. GenLR 72(c)(1) & (2). 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 incorporates by reference or refers to the briefing 

before the Magistrate Judge is not specific.

DONE this the 10th day of August, 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00362-KD-C Document 4 Filed 08/10/15 Page 14 of 14