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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BRANDON MARQUIS PUGH, *

 *

Petitioner, *

 *

vs. * CIVIL ACTION NO. 13-00588-WS-B

 *

LOUIS BOYD, *

 *

Respondent. *

REPORT AND RECOMMENDATION

Brandon Marquis Pugh, 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), Local 

Rule 72.2(c)(4), 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). Following a complete review of this 

action, the undersigned recommends that the petition be 

dismissed as barred by the statute of limitations. 

FINDINGS OF FACT

Pugh was charged with second-degree rape in the Circuit 

Court of Mobile County, Alabama (CC-07-0808), and on August 15, 

2007, he entered a guilty plea. (Doc. 12-1 at 1). On the same 

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date, Pugh was sentenced to twenty years in the State 

penitentiary, split with five years to be served, followed by 

five years probation. (Id. at 2-3). Pugh did not did not appeal 

his conviction and sentence. (Docs. 12 at 1, 12-1). 

Pugh was released from prison to probation on January 1, 

2012. (Doc. 12 at 2). Six weeks later, he was arrested for 

second-degree rape and second-degree sexual abuse. (Id.) Pugh’s 

probation in CC-0700808 was revoked on September 26, 2012, and 

he was ordered to serve the remainder of his 2007 sentence. 

(Doc. 12-5 at 2). Pugh appealed his probation revocation, but 

the Alabama Court of Criminal Appeals affirmed the trial court’s 

revocation decision on April 26, 2013. (Doc. 12-5 at 2). Pugh’s 

application for rehearing was overruled on May 31, 2013. (Doc. 

12-6). His petition for certiorari was denied on August 16, 

2013, and a certificate of judgment issued the same day. (Doc. 

12-7). 

Pugh filed the first of three petitions for habeas corpus 

relief with this Court on June 27, 2012. See Pugh v. Kenneth 

Scoungers, CA 13-00360-KD-M (S.D. Ala.). In his first petition, 

Pugh challenged the revocation of his probation. See Pugh v. 

Kenneth Scoungers, CA 13-00360-KD-M, (Docs. 1, 5). While the 

first petition was pending, Pugh filed two more habeas petitions 

with this Court, the instant petition, and a third one styled 

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Pugh v. Carla Jones, CA 13-00611-KD-N (S.D. Ala.)1. In both this 

petition, and Pugh’s third petition, he seeks to challenge his 

August 15, 2007 conviction on the following grounds:

Complainant wasn’t younger than 16 years of 

age nor was she incapable of consent by 

reason of being mentally defective.

Complainant doesn’t fit the elements of Rape 

2nd § 13A-6-62 and the petitioner can’t be 

charged for that crime.

Pugh v. Carla Jones, CA 13-00611-KD-N (Doc. 1 at 4); Pugh v. 

Carla Jones, CA 13-00588-WS-B (Doc. 1 at 4). The Pugh v. Carla 

Jones, CA 13-00611-KD-N action was consolidated with the Pugh v. 

Kenneth Scoungers, CA 13-00360-KD-M action, which was later 

dismissed on the ground that Pugh’s claims relating to the 

revocation of his probation were unexhausted. Thus, the 

consolidated petition was dismissed so that Pugh could properly 

exhaust his state remedies. Kenneth Scoungers, CA 13-00360-KD-M, 

(Docs. 27, 32). 

 

1 Although the instant petition was received by the Clerk’s 

Office on December 2, 2013, pursuant to the mailbox rule, a 

prisoner’s petition is deemed filed on the date it is delivered 

to prison officials for mailing, absent contrary evidence. 

Houston v. Lack, 487 U.S. 266, 271-71, 108 S. Ct. 2379, 101 L. 

Ed. 2d 245 (1988); Adams v. United States, 173 F. 3d 1339, 1340-

41 (llth Cir. 1999). The record reflects that Pugh signed his 

petition on November 26, 2013, and absent evidence to the 

contrary, that date is deemed the date on which he tendered the 

petition to prison officials for mailing. The third petition was 

signed on the same day.

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In its Answer, Respondent asserts that Pugh’s instant 

habeas petition should be denied for the following reasons: (1) 

Pugh failed to exhaust the two claims he now attempts to raise 

and due to the running of the one year statute of limitations 

period in Rule 32.2(2) of the Alabama Rules of Criminal 

Procedure, it would be futile for him to do so now and (2) 

Pugh’s petition is barred by the one year statute of limitations 

set forth in Section 2244. (Doc. 12).

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 

action in violation of the Constitution or 

laws of the United States is removed, if the 

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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).

For prisoners convicted prior to the enactment of the 

AEDPA, the statute of limitations is considered to run from the 

Act’s effective date of April 24, 1996. Drew v. Dep’t of Corr., 

297 F.3d 1278, 1283 (11th Cir. 2002); Guenther v. Holt, 173 F.3d 

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

Ct. 811, 145 L. Ed. 2d 683 (2000). Thus, AEDPA’s one-year 

statute of limitations period expires on April 23, 1997 for 

habeas petitions filed by those inmates convicted prior to 

AEDPA’s enactment date.

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

August 15, 2007 conviction and sentence; accordingly his 

conviction and sentence became final on September 27, 2007,

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after his 42 days to file a notice of appeal had passed. 

Ala.R.App.P.R.4. Because Pugh’s 2007 conviction and sentence 

became final before his probation was revoked on September 26, 

2012, the revocation did not affect the finality or his original 

conviction and sentence. Accordingly, the AEDPA’s one-year

statute of limitations began to run when his original conviction 

and sentence became final. His probation revocation did not 

resurrect, toll or otherwise extend the one-year limitations

period. See Bennett v. Sec’y, Dep’t of Corr., 2014 U.S. Dist. 

LEXIS 69085 (M.D. Fla. May 19, 2014)(where the petitioner’s 

conviction became final before his probation was revoked, the 

revocation did not affect finality of the original judgment and 

conviction).

Before recommending dismissal of Pugh’s habeas petition as 

untimely, the undersigned must determine whether Pugh has pled 

extraordinary circumstances that require a contrary conclusion. 

Thus, unless Pugh can demonstrate that the tolling provisions of 

the AEDPA were triggered, his habeas petition is untimely.

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, 

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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, 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. 

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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, Pugh has failed to establish a basis for 

equitable tolling of the statutory limitations period. He has 

not alleged the existence of extraordinary circumstances beyond 

his control that prevented him from filing a timely petition

with respect to his 2007 conviction and sentence, 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. He has also failed to alone 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 Pugh 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 Respondent2. 

 

2 The undersigned also finds that as asserted by Respondent, it 

is clear that Pugh’s claims are procedurally defaulted. A state 

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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 

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. 

 

habeas corpus petitioner who fails to raise his federal claims 

properly in state court is procedurally barred from pursuing the 

same claims in federal court absent a showing of cause for and 

actual prejudice from the default." Bailey v. Nagle, 172 F.3d 

1299, 1302 (11th Cir. 1999). The record reflects that Pugh 

never attacked his 2007 conviction and sentence in state court; 

and it is obvious that the unexhausted claims would now be 

procedurally barred by the one-year statute of limitations 

period in Rule 32.2(2) of the Alabama Rules of Criminal 

Procedure. Further, Pugh has not established cause for and 

actual prejudice from the default. 

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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, Pugh’s petition is 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 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 Pugh 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 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 

Pugh’s petition should be dismissed; thus, he is not entitled to 

a certificate of appealability.

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CONCLUSION

For the reasons set forth above, the undersigned recommends 

that the Court dismiss Roberts’ petition with prejudice as timebarred and find that he is not entitled to a Certificate of 

Appealability, and is not entitled to proceed in forma pauperis3

on appeal.

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. 

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. 

 

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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DONE this 3rd day of October, 2014.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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