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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ROBERT L. HAWKINS, JR., :

 :

Petitioner, :

 :

vs. : CIVIL ACTION 14-0328-KD-M

 :

CYNTHIA STEWART, :

 :

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 is adequate to 

determine Petitioner's claims; no federal evidentiary hearing is 

required. It is recommended that this petition be dismissed as 

time-barred and that judgment be entered in favor of Respondent 

Cynthia Stewart and against Petitioner Robert L. Hawkins, Jr.

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 first degree rape and 

possession of a pistol after committing a crime of violence in 

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the Mobile County Circuit Court on June 23, 1982 for which he 

received sentences of ten and five years, respectively, in the 

state penitentiary (Doc. 1, p. 2). Hawkins did not appeal his 

convictions (Doc. 1, p. 3). 

Petitioner filed a Rule 32 petition on November 29, 2011

(Doc. 1, p. 4).1 Following the denial of the petition by the 

lower court, the Alabama Court of Criminal Appeals dismissed the 

appeal, on procedural grounds, and remanded it back to the lower 

court (see Doc. 9, Exhibit A). Hawkins has indicated that it 

was ultimately dismissed on February 28, 2013 (Doc. 1, p. 4).

Petitioner filed a complaint with this Court on July 1, 

2014 raising the following claims: (1) His convictions were 

obtained without any information, complaint, or indictment 

issued against him; and (2) the trial court was without 

jurisdiction to sentence him (Doc. 1). 

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. 2). Respondent 

refers to provisions of the Anti-Terrorism and Effective Death 

Penalty Act of 1996 (hereinafter AEDPA) that amended, in 

pertinent part, 28 U.S.C. § 2244. The specific provision states 

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Respondent has asserted that the petition was filed on January 

10, 2012 (Doc. 9, p. 2). However, it is of no moment, for purposes of 

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as follows: 

 resolving the claims in this action, on which day it was filed.

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 convictions became final on August 4, 1982, 

the last day he could file an appeal. “In a criminal case a 

notice of appeal by the defendant shall be filed with the clerk 

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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). As such, Hawkins’s convictions became final prior to 

the effective date of the AEDPA. This means that Goodman is 

applicable here and Petitioner’s opportunity to file a habeas 

action expired on April 24, 1997.

Petitioner’s habeas corpus petition was not filed in this 

Court until July 1, 2014, many years after the grace period had 

expired. Petitioner had filed a Rule 32 petition in state court 

on November 29, 2011, more than seventeen years after the grace 

period had expired. 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 statute.

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). The Court finds that Petitioner has provided no cause 

for ignoring the dictates of the Anti-Terrorism and Effective 

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Death Penalty Act of 1996: this action is time-barred.2

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 Cynthia Stewart and 

against Petitioner Robert L. Hawkins 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 

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Hawkins filed a Reply to Respondent’s Answer; however, the Reply 

does not address AEDPA at all (Doc. 13).

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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 Hawkins 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 

Petitioner 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 12th day of February, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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