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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GEORGE BONNER, : 

 Petitioner, : 

v. : CIVIL ACTION 16-0028-CG-M

LEE POSEY DANIELS, : 

 Respondent. : 

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama 

inmate that 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, and the Court’s own 

records, are adequate to determine Petitioner's claims; no 

federal evidentiary hearing is required. It is recommended that 

this habeas petition be denied as time-barred, that this action 

be dismissed, and that any certificate of appealability filed by 

Petitioner be denied as he is not entitled to appeal in forma 

pauperis. Finally, it is recommended that judgment be entered 

in favor of Respondent, Lee Posey Daniels, and against 

Petitioner, George Bonner, on all claims.

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Petitioner was convicted of second degree rape in Choctaw 

County Circuit Court on November 30, 1999 for which he was 

sentenced to thirty years in the penitentiary (Doc. 1, p. 2; see 

also Doc. 10, Exhibit 2, pp. 2-3). No appeal was filed (see

Doc. 1, p. 3).

On March 13, 2013, Bonner filed a habeas petition in this 

Court. Bonner v. Forniss, C.A. 13-0132-WS-B, at Doc. 1 (S.D. 

Ala. March 20, 2014). On February 19, 2014, U.S. Magistrate 

Judge Bivins entered a Report and Recommendation that the 

petition be barred by the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (hereinafter AEDPA) as it was filed more 

than twelve years after the statute of limitations period had 

expired (id. at Doc. 22). On March 20, 2014, Chief U.S. 

District Court Judge Steele adopted the Report and 

Recommendation as the opinion of the Court and entered judgment 

against Bonner (id. at Docs. 27-28). 

Petitioner filed the current habeas petition on January 8, 

2016, raising the following claims: (1) He was not made aware 

that he was subject to be sentenced under the Alabama Habitual 

Felony Offender Act; and (2) he is serving a sentence on a 

charge (second-degree rape) that was actually dismissed with 

prejudice (Doc. 1). Respondent Answered the Complaint, 

asserting that this was a successive petition and that Bonner

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had failed to seek approval from the Eleventh Circuit Court of 

Appeals to file it (Doc. 10).

The undersigned notes that this Court’s review is barred 

from reviewing this petition without a certificate from the 

Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 

2244(b). In an Order instructing Petitioner to address this 

issue, the Court noted that “[b]efore a second or successive 

application permitted by this section is filed in the district 

court, the applicant shall move in the appropriate court of 

appeals for an order authorizing the district court to consider 

the application.” 28 U.S.C. § 2244(b)(3)(A) (Doc. 11).

The Court notes that Petitioner has provided no evidence 

that he has been given the authority to file this action (see

Docs. 12-14). Rather, he has argued that his first action was 

not really a habeas petition but “was a petition to have the 

state trial court to turn over records that they withheld 

preventing Bonner from perfecting his appeal” (Doc. 12, p. 1). 

Petitioner asserts that although he mislabeled the petition, he 

was only trying to compel discovery; he urges this Court to look 

at his first action liberally for its true substance rather than 

the caption under which it was filed (id. at pp. 1-2). 

The Court has reviewed Bonner’s prior action and notes that 

Judge Bivins, in her Report and Recommendation, noted that he 

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sought “‘an order on the trial court of Choctaw County to turn 

over the notice of appeal’ and his complete trial records 

associated with his ‘appeal file [from] September 21, 2012.’ 

(Doc. 1 at 15).” Bonner, at Doc. 22, pp. 2-3. In citing the 

reference, Bivins dropped a footnote that stated the following: 

As best the undersigned can discern, 

Bonner contends that he filed a Rule 32

petition with the Circuit Court of Choctaw 

County, Alabama on November 4, 2010, that 

after his petition was denied, he filed a 

Notice of Appeal by the certified mail, and 

that the Clerk of Court has failed to docket 

his appeal. According to Bonner, he filed a 

Rule 32 petition with the Circuit Court of 

Choctaw County, Alabama, which was denied. 

(Doc. 1 at 14, 16-17, 18). According to 

Bonner, he has filed Writs of Mandamus with 

the Alabama Court of Criminal Appeals and 

the Alabama Supreme Court in an attempt to 

force the trial court of Choctaw County to 

turn over his appeal and trial records. The 

writ was transferred to the Presiding Judge 

of the Choctaw Circuit Court for 

consideration. (Id. at 54). On January 18, 

2013, Bonner filed another Writ of Mandamus 

in the Alabama Court of Criminal Appeals, 

requesting that the court direct the 

Presiding Judge of Choctaw County Circuit 

Court to take some action on the writ that 

was transferred to him. (Id. at 54-64).

Bonner, at Doc. 22, pp. 2-3 n.2. 

The undersigned notes that “[f]ederal courts sometimes will 

ignore the legal label that a pro se litigant attaches to a 

motion and recharacterize the motion in order to place it within 

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a different legal category.” Castro v. United States, 540 U.S. 

375, 381 (2003). “They may do so in order to avoid an 

unnecessary dismissal, to avoid inappropriately stringent 

application of formal labeling requirements, or to create a 

better correspondence between the substance of a pro se motion’s 

claim and its underlying legal basis.” Id. at 381-82. 

The undersigned finds that Bonner’s previous action

specifically requested that this Court order a state court to 

perform particular actions; it raised no claims regarding either 

his State conviction or sentence as required in 28 U.S.C. § 

2254. Therefore, the undersigned recharacterizes the prior 

action, Bonner v. Forniss, C.A. 13-0132-WS-B (S.D. Ala. March 

20, 2014), to have been a writ of mandamus rather than a Section 

2254 action.1 

Nevertheless, it is noted that “[f]ederal courts have no 

jurisdiction to issue writs of mandamus directing a state court 

and its judicial officers in the performance of their duties 

where mandamus is the only relief sought.” Bailey v. Silberman, 

226 Fed.App’x 922, 924 (11th Cir. 2007) (unpublished)2 (citing 

 1

The undersigned notes that no particular authority has been 

found that allows for recharacterizing a prior action as is the case 

here; however, the undersigned finds it appropriate in this 

circumstance.

2

“Unpublished opinions are not considered binding precedent, but 

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

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Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 

(5th Cir. 1973)).3 Therefore, the undersigned finds that the 

prior action was properly dismissed since the Court could not 

grant the requested relief.

After considering these conclusions, the undersigned finds 

that it would be improper to deny this petition on the grounds 

that it is successive. Therefore, the undersigned will treat 

this action as Bonner’s first Section 2254 action.

Nevertheless, the undersigned finds that this petition 

should be denied on different grounds. Judge Bivins set out, in 

her Report and Recommendation, the history of Petitioner’s 

litigation through the state court and how his failure to timely 

file his Section 2254 petition precluded its consideration by 

AEDPA. Bonner, at Doc. 22, pp. 3-7. Next, the Judge determined

that Bonner had failed to demonstrate the following: 

extraordinary circumstances for his failure to timely file his 

petition; reasonable due diligence in prosecuting his claims; or 

any reason that he was entitled to equitable tolling of AEDPA’s 

limitations period. Bonner, at Doc. 22, pp. 7-9. 

The undersigned has found no error in these conclusions. 

However, for the convenience of the Parties and the readers of 

 3

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 

1206, 1209 (11th Cir. 1981) (en banc), adopted as precedent decisions 

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this Report, the Court will, once again, go through the AEDPA 

analysis.

The specific, pertinent provision of AEDPA states the 

following: 

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). 

In the present petition, Bonner states that he was 

convicted on November 30, 1999; he admits that he filed no 

appeal (Doc. 1, pp. 2-3). Under Alabama law, “[i]n 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).” Ala.R.App.P. 

4(b)(1). Therefore, Petitioner’s conviction became final on 

January 11, 2000, the last day he could file an appeal of his 

 of the former Fifth Circuit rendered prior to October 1, 1981.

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conviction. The AEDPA limitations clock began to run the next 

day and expired on January 11, 2001. 

Bonner’s habeas corpus petition was not filed in this Court 

until January 8, 2016, nearly fifteen years after the 

limitations period had expired. Records show that Petitioner 

filed his first Rule 32 petition in state court on June 27, 

2001, more than five months after the limitations period had 

expired. See Bonner, Doc. 15, Exhibit B, p. 2. The undersigned 

notes, however, that 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 AEDPA statute.4

The undersigned finds that Bonner’s habeas corpus petition 

was filed well beyond the one-year AEDPA limitations period and 

filed in violation of 28 U.S.C. § 2244(d). The undersigned

finds that Petitioner has provided no cause 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 denied as time-barred and that this 

 4

It appears that Bonner filed two other Rule 32 petitions (see

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action be dismissed.

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

§ 2254 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) 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 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 procedural ruling.” Slack 

v. McDaniel, 529 U.S. 473, 484 (2000). As Bonner is barred by 

the AEDPA statute of limitations from bringing this action, a 

reasonable jurist could not conclude that this Court errs in 

dismissing the instant petition or that Petitioner should be 

 Doc. 1, pp. 3-6), but it is of no moment as they, too, came too late.

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allowed to proceed. 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 Bonner’s petition for writ of habeas 

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

this action be dismissed. It is further recommended that any 

certificate of appealability filed by Petitioner be denied as he 

is not entitled to appeal in forma pauperis. Finally, it is 

recommended that judgment be entered in favor Respondent, Lee 

Posey Daniels, and against Petitioner, George Bonner.

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. L.R.72.4. 

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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 16th day of June, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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