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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JONATHAN D. GARRISON, *

#190475 * 

 * 

Petitioner, *

 *

vs. * CIVIL ACTION NO.:14-00069-CG-B

 *

CYNTHIA STEWART, *

 *

Respondent. *

REPORT AND RECOMMENDATION

Jonathan D. Garrison, a state inmate in the custody of 

Respondent, has petitioned this Court for federal habeas corpus 

relief pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition has 

been referred to the undersigned Magistrate Judge for a report 

and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. 

Ala. GenLR 72(a)(2)(R), and Rule 8 of the Rules Governing Section 

2254 Cases. The undersigned has conducted a careful review of 

the record and finds that no evidentiary hearing is required to 

resolve this case. Kelley v. Sec'y for the Dep’t of Corr., 377 

F.3d 1317 (11th Cir. 2004). Upon careful consideration, the 

undersigned recommends that the petition be dismissed as barred 

by the statute of limitations.

I. FINDINGS OF FACT

On November 21, 1996, Garrison pled guilty to murder. (Docs.

1, 10 at 3). He was sentenced to life in prison, and he did not 

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directly appeal his conviction. (Doc. 1 at 2, 3). 1 The record 

does not reflect, nor does Garrison allege, that he filed a 

petition seeking certiorari before the Alabama Supreme Court. 

(Id.). On July 27, 1998, he filed a Rule 32 petition with the 

trial court and indicated that the grounds for said petition were 

“unknown” to him. (Docs. 1 at 4, 10-2 at 2-3). His Rule 32 

petition was dismissed on January 8, 1999. (Doc. 10 at 2). He did 

not file an appeal. (Id.). 

Garrison filed the instant § 2254 petition on February 13, 

2014.2 (Doc. 1). In his petition, Garrison attacks his November 

26, 1996 conviction and sentence on the following grounds: (1) 

the State of Alabama has not afforded him an adequate judicial 

process to remedy federal constitution violations in his criminal 

prosecution because the writ of habeas corpus and Rule 24 and 

Rule 32 are inadequate post-conviction remedies (id. at 12-13); 

(2) the State has not afforded him an adequate corrective 

judicial process to remedy his conviction in violation of the 

Equal Protection Clause because the Alabama post-conviction 

 

1 In his petition, Garrison lists his conviction date as November 

26, 1996, (Doc. 1 at 2), but Respondent’s Answer and the Case 

Action summary list the conviction date as November 21, 1996. 

(Docs. 10 at 2, 10-1 at 3). The discrepancy is not fatal given 

that the petition was filed sixteen years beyond the expired 

statute of limitations. 

2 Under the mailbox rule, absent contrary evidence, a prisoner’s 

motion is deemed filed on the date it is delivered to prison 

officials for mailing. Washington v. United States, 243 F.3d 

1299, 1301 (llth Cir. 2001).

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remedies have time limits and procedural bars unlike the postconviction remedies of Nebraska (id. at 14-15); (3) the AntiTerrorism and Effective Death Penalty Act’s (AEDPA) one-year 

statute of limitation violates his due process right to a hearing

(id. at 18-19); (4) the AEDPA violates the First Amendment 

because it puts time limits or procedural defaults on his right 

to petition the Government for a redress of grievances(id. at 18-

19); (5) “the 14th Amendment Privilege and Immunity Clause 

safeguards against encroachment by the State Government of [his] 

right to petition the Alabama Judicial Government for redress of 

grievances which the First Amendment safeguards against 

encroachment by Congress” (id. at 24); (6) his conviction 

violates his Fourteenth Amendment right to have procedures by 

which parole is granted or denied under a standard of due process

(id. at 24); (7) his guilty plea was accepted in violation of his 

due process rights because the Court did not inform him of his 

right to appeal and he was not given the opportunity to state an 

objection he may have had to defense counsel’s conducting the 

defense (id. at 29-34); (8) he was not “apprised with reasonable

certainty of the nature of the accusation against him,” because 

his indictment tracked the language of Alabama State Capital 

Murder Statute, 13A-5-40 of the Code of Alabama 1975, but it did 

not include a statement of the facts (id. at 34-37); (9) his 14th

Amendment Equal Protection rights have been violated because he 

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has been denied rehabilitative parole while other prisoners 

convicted of murder have been granted parole. (Id. at 37-41). 

In its Answer, the Respondent asserts that Garrison is not 

entitled to relief because his habeas petition is untimely and 

his claims for relief are procedurally defaulted by his failure 

to exhaust them in state court. (Doc. 10 at 1). For the reasons 

set forth herein, the undersigned recommends that Garrison’s 

petition be dismissed because it is barred by the one-year statue 

of limitations. 

II. ANALYSIS

Pursuant to 28 U.S.C. § 2244 (d)(1), as amended by the April 

24, 1996 enactment of The Anti-Terrorism and Effective Death 

Penalty Act of 1996, § 101(Supp. II 1997) (“AEDPA”), a state 

prisoner seeking a federal habeas corpus remedy must file his 

federal petition within one year of the “conclusion of direct 

review or the expiration of the time for seeking such review.” 

The Act provides that: 

(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 limitations 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 

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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 

diligence.

(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.

28 U.S.C. § 2244 (d).

As noted above, the AEDPA imposes a one-year limitations 

period on § 2254 actions and includes one of several commencement 

dates, including “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); see also Pugh v. 

Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). 

In the instant action, Garrison did not seek to appeal his 

conviction; accordingly his conviction became final on January 2, 

1997, after the 42 days allotted to file a notice of appeal had 

passed. Ala.R.App.P.R.4. Accordingly, the statute of limitations 

for Garrison to file a federal habeas petition began running on 

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January 2, 1997, and in the absence of a tolling event, expired 

one year later on January 2, 1998. The record reflects, however, 

that Garrison did not file the instant habeas petition until 

September 13, 2014, more than sixteen (16) years after the 

statutory deadline had expired. Thus, unless Garrison can 

demonstrate that the tolling provisions of the AEDPA were 

triggered, his habeas petition is untimely. 

Section 2244(d)(2) of the AEDPA provides for the tolling of 

the limitations period pending state court review of a properly 

filed application for post-conviction relief. See In re Hill, 437 

F.3d 1080, 1083 (11th Cir. 2006). Although Garrison filed a Rule 

32 petition with the state court, it was not pending during the 

running of the AEDPA limitation period. The law is clear that 

“even “properly filed” state court-court petitions must be 

“pending” [during the one-year period of limitation] in order to 

toll the limitations period. 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 (llth Cir. 2000); 

see also Tinker v. Moore, 255 F.3d 1331, 1335. n.4 (llth Cir. 

2001)(“[A] properly filed petition in state court only tolls the 

time remaining within the federal limitation period.”); Sibley

v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004)(“While a 

properly filed application for post-conviction relief tolls the 

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statute of limitations, it does not reset or restart the statute 

of limitations once the limitations period has 

expired.”)(citation omitted). Because the AEDPA limitations 

period had already expired by the time Garrison filed his Rule 32 

petition with the state trial court in 1998, it had no tolling 

effect. Thus, Garrison’s federal habeas petition was untimely 

filed.

Before recommending dismissal of Garrison’s habeas petition 

as untimely, the undersigned must determine whether Garrison has 

pled extraordinary circumstances that require a contrary 

conclusion.

The Eleventh Circuit has stated that: 

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.’ 

Sandvik v. United States, 177 F.3d 1269[, 1271 (11th 

Cir. 1999)]. Equitable tolling is an extraordinary 

remedy, which is typically applied sparingly. See

Irwin v. Dept. Of Veterans Affairs, 498 U.S. 89, 96, 

111 S. Ct. 453, 112 L. Ed. 2d 435 (1990).

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). See also

Holland v. Florida, 560 U.S. 631, 645 130 S. Ct. 2549, 2560, 177 

L.Ed.2d 130, 143 (2010) (“ §2244(d) is subject to equitable 

tolling in appropriate cases[,] . . . We have previously made 

clear that a ‘petitioner is entitled to equitable tolling’ only 

if he shows ‘(1) that he has been pursuing his rights diligently, 

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and (2) that some extraordinary circumstance stood in his way’ 

and prevented timely filing.”); Diaz v. Sec’y for the Dept. of 

Corr., 362 F.3d 698 (11th Cir. 2004); Miller v. New Jersey State 

Dept. of Corrections, 145 F.3d 616, 618-19 (3rd Cir. 1998)(“

equitable tolling is proper only when the principles of equity 

would make [the] rigid application [of a limitation period] 

unfair . . . [g]enerally, this will occur when the petitioner has 

in some extraordinary way...been prevented from asserting his or 

her rights . . . [t]he petitioner must show that he or she 

exercised reasonable diligence in investigating and bringing 

[the] claims . . . [m]ere excusable neglect is not sufficient”). 

Moreover, in the Eleventh Circuit, as a general rule, “the 

“extraordinary circumstances” standard applied in this circuit 

focuses on the circumstances surrounding the late filing of the 

federal habeas petition, rather than the circumstances 

surrounding the underlying conviction.” Helton v. Sec’y of Dep’t

of Corr., 259 F.3d 1310, 1314 (11th Cir. 2001), cert. denied, 535 

U.S. 1080, 122 S.Ct. 1965 (2002); Drew v. Dep’t of Corr., 297 

F.3d 1278, 1286-87 (11th Cir. 2002).

In this case, Garrison has failed to establish a basis for 

equitable tolling of the statutory limitations period. He instead 

argues that the AEDPA is unconstitutional because it violates the 

Supremacy Clause. (Doc. 1 at 41-42). He has not alleged the 

existence of extraordinary circumstances beyond his control that 

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prevented him from filing a timely petition, nor has he met the 

heavy burden of showing that he exercised reasonable diligence in 

prosecuting his claims and in bringing forth his habeas petition.

Garrison has also failed to allege or offer any evidence that 

suggests that he is innocent. Where Respondent has asserted the 

defense of statute of limitations and the Petitioner has failed 

to meet his burden of establishing extraordinary circumstances 

which would justify the equitable tolling of AEDPA’s limitations 

period, the undersigned must recommend that this case be 

dismissed as time-barred. Accordingly, the undersigned finds 

that because Garrison has neither demonstrated actual innocence, 

nor established that equitable tolling is warranted in this case, 

his federal habeas petition should be dismissed as time-barred, 

and judgment should be entered in favor of Respondent.

III. CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, 

“[t]he district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the 

applicant.” Rule 11(a) of the Rules Governing 2254 Cases 

(December 1, 2009). 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. § 2253(c)(2). When a 

habeas petition is dismissed on procedural grounds, such as in 

the instant case, without reaching the merits of any underlying 

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constitutional claim, “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, 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 ‘show 

that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have resolved in a 

different manner or that the issues presented were ‘adequate to 

deserve encouragement to proceed further”). 

In the instant action, Garrison’s claims are clearly time 

barred, and he has failed to present extraordinary circumstances 

beyond his control that prevented him from filing this action in 

a timely manner. Steed, 219 F.3d at 1300. He has also failed to 

make a sufficient showing of ‘actual innocence’ of the charge for 

which he was convicted. Schlup, 513 U.S. at 327. Thus, under the 

facts of this case, a reasonable jurist could not conclude either 

that this Court is in error in dismissing the instant petition or 

that Garrison should be allowed to proceed further. Slack, 529 

U.S. at 484, 120 S. Ct. at 1604 (“Where a plain procedural bar is 

present and the district court is correct to invoke it to dispose 

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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”). Accordingly, 

the undersigned recommends that the Court conclude that no 

reasonable jurist could find it debatable whether the Garrison’s 

petition should be dismissed; thus, he is not entitled to a 

certificate of appealability.

IV. CONCLUSION

For the reasons set forth above, the undersigned recommends 

that the Court dismiss Garrison’s petition with prejudice as 

time-barred, and find that he is not entitled to a Certificate of 

Appealability, and is thus not entitled to proceed in forma 

pauperis3 on appeal.

The attached sheet contains important information regarding 

objections to the report and recommendation of the Magistrate 

Judge.

DONE this the 4th day of August, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

 

3 An in forma pauperis action is frivolous, and thus not brought 

in good faith, if it is “without arguable merit either in law or 

fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (llth Cir. 2001).

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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 GenLR 72(c). 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 done by the Magistrate Judge 

is not specific. 

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