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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OLNEY PACKER, :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 14-0402-KD-M

 :

LEON FORNISS, :

 :

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 Leon Forniss and against Petitioner Olney Packer

pursuant to 28 U.S.C. § 2244(d). It is further recommended that

any certificate of appealability filed by Petitioner be denied 

as he is not entitled to appeal in forma pauperis.

Petitioner was convicted of manslaughter in the Mobile

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County Circuit Court on July 29, 1981 for which he received a 

sentence of life in the state penitentiary (see Doc. 9, Exhibit 

RX-1, p. 4). On appeal, the Alabama Court of Criminal Appeals

affirmed the conviction (Doc. 4, p. 5). Packer sought 

certiorari, but the Alabama Supreme Court denied it; on that 

same day, April 2, 1982, the certificate of final judgment was 

entered (see Doc. 9, Exhibit RX-1, p. 6).

On January 19, 1983, Petitioner filed a petition for writ 

of error coram nobis that was denied (see Doc. 9, Exhibit RX-1, 

p. 6). The Court of Criminal Appeals affirmed the denial and, 

on July 28, 1983, entered a certificate of judgment (see Doc. 9, 

Exhibit RX-1, pp. 6-7). 

On April 15, 1997, Packer filed a State Rule 32 petition; 

it was denied as untimely and successive (see Doc. 9, Exhibit 

RX-1, p. 9). The denial was affirmed by the Alabama Court of 

Criminal Appeals and a certificate of judgment was issued on 

November 18, 1997 (Doc. 9, Exhibit RX-1, p. 10).

On July 12, 2004, Petitioner filed a Motion to Modify that

was denied (Doc. 9, Exhibit X-1, pp. 11-13). The Alabama Court 

of Criminal Appeals reclassified the Motion as a State Rule 32 

petition and dismissed it because Packer had not paid a filing 

fee, rendering the Circuit Court’s judgment void and 

unsupportive of an appeal; a certificate of judgment was issued 

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on January 14, 2005 (Doc. 9, Exhibits RX-6 and RX-7).

On October 26, 2012, Packer filed another State Rule 32 

petition that was denied as untimely and successive (Doc. 9, 

Exhibit RX-8, pp. 1-2). The Alabama Court of Criminal Appeals 

affirmed the lower court decision, finding that Petitioner had 

abandoned the only claim raised in the lower court and raised a 

new claim that had not been previously raised (Doc. 9, Exhibit 

RX-8). A certificate of judgment was issued on July 5, 2013 

(Doc. 9, Exhibit RX-9). 

Packer filed his final Rule 32 petition on November 14, 

2013; the trial court dismissed the petition, finding the claims 

unsupported by the asserted facts and without merit (Doc. 9, 

Exhibit RX-10, pp. 13-23, 46-49). The Alabama Court of Criminal 

Appeals affirmed the decision and, on July 2, 2014, issued a 

certificate of judgment (Doc. 9, Exhibits RX-11 and RX-12). 

Petitioner filed a complaint with this Court on September 

18, 2014 raising the following claims: (1) The trial court 

lacked jurisdiction to sentence him; and (2) his sentence 

exceeds the maximum allowed by statute (Doc. 4). 

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. 9, pp. 9-12). Respondent 

refers to provisions of the Anti-Terrorism and Effective Death 

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Penalty Act of 1996 (hereinafter AEDPA) that 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). The 

Eleventh Circuit Court of Appeals held that the one-year 

limitations period would begin to run on that date, April 24, 

1996, for potential habeas petitioners whose convictions had 

already become final by way of direct review. Goodman, 151 F.3d 

at 1337; Wilcox v. Florida Dept. of Corrections, 158 F.3d 1209, 

1211 (11th Cir. 1998). In other words, the Eleventh Circuit 

Court of Appeals established a “grace period” through April 23, 

1997 so that federal and state criminal defendants would not 

lose the opportunity to seek federal habeas review. 

Petitioner’s conviction became final on April 2, 1982, the 

day on which the certificate of judgment was entered (Doc. 9, 

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Exhibit RX-4). As such, Packer’s conviction became final prior 

to the effective date of the AEDPA. So, Petitioner had until 

April 23, 1997 to file this petition.

Petitioner’s habeas corpus petition was not filed in this 

Court until September 18, 2014, more than seventeen years after 

the grace period had expired. Petitioner had filed a Rule 32 

petition in state court on April 15, 1997 (Doc. 9, Exhibit RX-1, 

p. 9), just before the AEDPA the grace period expired. The 

Court notes that AEDPA states that “[t]he 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)(2). 

However, Packer’s petition was not properly filed as it was 

untimely, so it did not toll the AEDPA limitations period. 

Petitioner did not file another Rule 32 until July 12, 2004, but 

the limitations period had been concluded for more than seven 

years at that point.

Clearly, Petitioner’s habeas corpus petition was filed well 

beyond the one-year grace period and filed in violation of 28 

U.S.C. § 2244(d). Petitioner has asserted that he is actually 

innocent of the four convictions that were used to enhance his 

sentence and that this provides cause for his tardy filing (Doc. 

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11). 

The U.S. Supreme Court, in Schlup v. Delo, 513 U.S. 298, 

324 (1995), has stated that, in raising an actual innocence 

defense to a procedural bar, a petitioner must “support his 

allegations of constitutional error with new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence--that was not 

presented at trial.” The evidence presented “must show that it 

is more likely than not that no reasonable juror would have 

found petitioner guilty beyond a reasonable doubt.” Schlup, 513 

U.S. at 327. In other words, Petitioner must persuade this 

Court, “that, in light of the new evidence, no juror, acting 

reasonably, would have voted to find him guilty beyond a 

reasonable doubt.” Schlup, 513 U.S. at 329. A court can 

consider constitutional infirmities only after this threshold 

has been met.

In this action, the Court notes that Petitioner offers only 

assertions of his innocence. There is no offer of new evidence. 

The Court finds that Petitioner has made no showing of actual 

innocence and has not overcome the statute of limitations 

problem presented. The Court finds that Petitioner has provided 

no cause for ignoring the dictates of the Anti-Terrorism and 

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Effective Death Penalty Act of 1996: this action is timebarred.

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 Leon Forniss and 

against Petitioner Olney Packer pursuant to 28 U.S.C. § 2244(d).

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2254 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) 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 COA. 28 U.S.C. § 2253(c)(1). 

A COA may issue only where “the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). Where a habeas petition is being denied on 

procedural grounds, “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 

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 

(2000). As Packer has not filed this action in a timely manner, 

a reasonable jurist could not conclude either that this Court is

in error in dismissing the instant petition or that he should be 

allowed to proceed further. Slack, 529 U.S. at 484 (“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”). 

CONCLUSION

It is recommended that Petitioner’s petition for writ of 

habeas corpus, filed pursuant to 28 U.S.C. § 2254, be denied. 

It is further recommended that any certificate of appealability 

filed by Petitioner be denied as 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 

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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 20th day of February, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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