IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL J. GREEN, )

)

Petitioner, )

)

v. ) CIVIL ACTION NO. 2:09-0105-KD-N

)

CHERYL PRICE, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner has filed a Motion for Certificate of Appealability (doc. 27). His habeas

petition was dismissed with prejudice as time-barred. The court also noted that, even were that

not the case, he would likely not satisfy the “in custody” requirement.

Petitioner’s Motion for Certificate of Appealability adds nothing substantive to his

arguments on timeliness. The decision denying his petition was based on well-settled Circuit

precedent, and is not the sort of dispute as to which reasonable jurists could differ. His efforts to

pursue his Rule 32 petition in the state court–including a misfiled notice of appeal and a

subsequent mandamus seeking to have it declared to have been timely filed and thereby have it

heard–do not serve to toll the time for filing. “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)(2) (Emphasis added); see also Melson v. Allen, 548 F.3d 993,

998 (11th Cir. 2008) (unverified Rule 32 petition did not toll limitations); Watkins v. Daniel, Slip

Copy, 2009 WL 4508542 (M.D.Ala. 2009) (mandamus does not toll limitations). Further, his

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efforts to pursue an appeal of the denial of his collateral attach were not prevented by

government action. To be entitled to equitable tolling, [petitioner] must show ‘(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way’ and prevented timely filing.” Laurence v. Florida, 549 U.S. 327, 336 (2007), quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Finally, his attempt to fit into a putative ‘actual innocence’ exception to the limitations

period fails for lack of any newly discovered evidence. Further, the Eleventh Circuit has never

adopted such a rule. See Taylor v. Secretary, Dep’t of Corrections, 230 Fed. Appx. 944, 945

(11th Cir. 2007)(“[W]e have never held that there is an ‘actual innocence’ exception to the

AEDPA’s one-year statute of limitations, and we decline to do so in the instant case because [the

petitioner] has failed to make a substantial showing of actual innocence.”). 

Accordingly, it is RECOMMENDED that petitioner’s Motion for Certificate of

Appealability be DENIED.

See Magistrate Judge’s Explanation of Procedural Rights, attached, for important

information on how to proceed.

DONE this the 5th day of April, 2010.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

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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

fourteen (14) 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 [now fourteen] 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.

(Emphasis added) A magistrate judge’s recommendation cannot be appealed to a Court of

Appeals; only the district judge’s order or judgment can be appealed.

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.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

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