REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON, Magistrate Judge.
The Petitioner in the above-styled action, an Alabama prisoner proceeding pro se convicted under the name Brandon Marquis Pugh (see Doc. 1 at 1) but desiring to be identified as Brandon Marquis Pugh Bey (see Doc. 18) (hereinafter, "the Petitioner"), has filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). The petition has been referred to the undersigned Magistrate Judge who, under S.D. Ala. GenLR 72(a)(2)(R), is authorized to require responses, issue orders to show cause and any other orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the petition, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. See S.D. Ala. GenLR 72.2(b); (8/1/2016 electronic referral).
As ordered (see Docs. 4, 11), the Respondent, through the Office of the Attorney General of the State of Alabama, has timely filed an Answer (Doc. 10) and Supplemental Answer (Doc. 14) to the petition. The Petitioner has submitted several filings in reply to the answers. (See Docs. 12, 13, 15, 16, 18, 19, 20). The petition is now under submission. (See Doc. 17 at 5). Having reviewed the parties' submissions under Rule 8 of the Rules Governing Section 2254 Cases, the undersigned finds that an evidentiary hearing is not warranted and that the Petitioner's habeas petition (Doc. 1) is due to be
In August 2007, in the Circuit Court of Mobile County, Alabama (Case No. CC-07-808), the Petitioner pled guilty to one count of second degree rape, in violation of Ala. Code § 13A-6-62(a)(2) ("A person commits the crime of rape in the second degree if:. . .He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being mentally defective.") and was sentenced to 20 years in prison, split to serve 5 years in prison followed by 5 years of probation. On March 12, 2012, the Petitioner's probation officer filed a report charging the Petitioner with violating the terms and conditions of his probation by committing a new offense. On September 26, 2012, the circuit court, after conducting a hearing, revoked the Petitioner's probation and imposed his original sentence. (Doc. 10-4 [Respondent's Ex. 3 Pt. B] at 11 [Feb. 27, 2013 Order of the Alabama Court of Criminal Appeals]).
Liberally construing his habeas petition, as the Court must,
A. Challenge to 2007 Conviction is Second or Successive Petition
"Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4)." Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts. "Without authorization, the district court lacks jurisdiction to consider a second or successive petition." Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam) (citing Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (per curiam)).
In 2013, the Petitioner filed a habeas petition with this Court that also challenged his 2007 conviction. See Pugh v. Boyd, S.D. Ala. Case No. 1:13-cv-00588-WS-B. On October 20, 2014, the Court dismissed the 2013 petition with prejudice as time-barred by AEDPA's statute of limitations. See Pugh v. Boyd, Civil Action No. 1:13-cv-00588-WS-B, 2014 WL 5359019 (S.D. Ala. Oct. 20, 2014), motion for relief from judgment denied, 2015 WL 4931603 (S.D. Ala. Aug. 18, 2015). No appeal was taken in the 2013 case.
Accordingly, before the Petitioner could challenge his 2007 conviction in the present habeas petition, he was required to obtain an order from the Eleventh Circuit Court of Appeals authorizing this Court to consider that challenge.
B. Challenge to 2012 Probation Revocation is Meritless and Time-Barred
The Petitioner's 2012 probation revocation was based on his arrest for new offenses of second-degree rape and second-degree sexual abuse against another mentally handicapped victim, C.H. (See Doc. 14-4 [Respondent's Ex. 3.4] at 2). Those new offenses subsequently led to new charges being filed in 2015 against the Petitioner (Mobile Circuit Court Case Nos. CC-15-1083 and -1084), for which the Petitioner was convicted after trial and sentenced. (See Doc. 1-1 at 1 [Alabama Court of Criminal Appeals 2/5/2016 Memorandum Opinion]). While the Petitioner challenges his 2012 probation revocation in the present habeas petition, these challenges are based on alleged defects in his trial on the 2015 charges — specifically, that the trial judge improperly amended the indictment and adjudged him guilty of an offense for which the jury had acquitted him. (See Doc. 1-2 at 2; Doc. 15 [Motion for Actual Innocence Claim to Be Granted Upon Release]; Doc. 18). Because he claims he was not "legally convicted" of the 2015 charges, the Petitioner believes that his 2012 revocation, based on the same offenses underlying the 2015 charges cannot stand.
Silimon v. Sec'y, Fla. Dep't of Corr., 554 F. App'x 838, 841 (11th Cir. 2014) (per curiam) (unpublished). Moreover, this Court may only reverse a state court's factual finding that a probationer has violated his conditions of probation where that finding "`was so totally devoid of evidentiary support as to be invalid under the Due Process Clause of the Fourteenth Amendment.'" Newmones v. Sec'y, Fla. Dep't of Corr., 546 F. App'x 812, 816 (11th Cir. 2013) (per curiam) (unpublished) (quoting Douglas v. Buder, 412 U.S. 430, 432 (1973)). Under this standard, a state court's finding that a probationer has violated conditions of probation by committing a new offense is not invalidated simply because the probationer is acquitted at trial of criminal charges also based on that offense. See id. at 816-17 (affirming denial of habeas relief after finding that sufficient evidence supported the state court's finding that the petitioner had violated his probation by committing second-degree murder, even when this finding was made immediately after a jury had acquitted the petitioner of the substantive count of second-degree murder).
Thus, because the Petitioner has raised no challenge to either the procedural correctness or the evidentiary basis for his 2012 probation revocation, he is due no habeas relief as to that criminal judgment.
Regardless, the Petitioner's habeas challenge to his 2012 probation revocation is also due to be dismissed as time-barred. AEDPA imposes the following time limit for bringing habeas petitions:
28 U.S.C. § 2244(d)(1). Nothing in the Petitioner's present petition supports running his one-year limitations period for habeas challenges to his 2012 probation revocation from any of the dates in § 2244(d)(1)(B)-(D). Thus, the Petitioner ha[d] "one year from the date his judgment of conviction and sentence bec[a]me final to file a petition for a writ of habeas corpus in federal court." Walton v. Sec'y, Florida Dep't of Corr., 661 F.3d 1308, 1310 (11th Cir. 2011) (citing 28 U.S.C. § 2244(d)(1)(A)).
"The limitation period is tolled for `[t]he time during which a properly filed application for State post-conviction or other collateral review' is pending." Id. The record indicates that the Petitioner filed pro se a petition for post-conviction relief under Alabama Rule of Criminal Procedure 32 with the Mobile County circuit court on February 25, 2013.
As was explained to the Petitioner in permitting him to submit a reply (see Doc. 17 at 3-4), there are certain equitable exceptions that would excuse the untimeliness of his habeas petition. See San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (discussing equitable tolling); McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) (discussing "actual innocence" exception). The Petitioner has not attempted to argue that equitable tolling applies, and the new evidence the Petitioner claims demonstrates he is actually innocent of the offenses that led to his probation revocation, see n.7, supra, does not satisfy the standard for applying this equitable exception.
Accordingly, the present habeas petition is due to be
C. Certificate of Appealability
In actions such as this one brought under § 2254, a "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 Section 2254 Cases in the United States District Courts. However, a COA is unnecessary when the district court is dismissing a successive petition for lack of jurisdiction. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam). Thus, the undersigned will only address whether a COA should issue as to the Petitioner's habeas challenge to his 2012 probation revocation.
"A certificate of appealability may issue `only if the applicant has made a substantial showing of the denial of a constitutional right.'" Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en banc) (quoting 28 U.S.C. § 2253(c)(2)). However, "a COA does not require a showing that the appeal will succeed." Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Where the district court "has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also Miller-El, 537 U.S. at 336 ("Under the controlling standard, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." (citations omitted and punctuation modified)). Where habeas relief is denied on procedural grounds without reaching the merits of the underlying constitutional claim(s), "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, 529 U.S. at 484. "A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (quotations omitted).
Upon consideration, the undersigned finds that the Petitioner should be
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by the petitioner, he may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. See, e.g., Brightwell v. Patterson, No. CA 11-0165-WS-C, 2011 WL 1930676, at *6 (S.D. Ala. Apr. 11, 2011), report & recommendation adopted, 2011 WL 1930662 (S.D. Ala. May 19, 2011); Griffin v. DeRosa, No. 3:10cv342/RV/MD, 2010 WL 3943702, at *4 (N.D. Fla. Sep. 20, 2010) (providing for same procedure), report & recommendation adopted sub nom. Griffin v. Butterworth, 2010 W: 3943699 (N.D. Oct. 5, 2010).
In Forma Pauperis
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). A district court's finding "that an appeal would not be in good faith because no certificate of appealability had been issued . . . is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a certificate of appealability is not the same as the standard for determining whether an appeal is in good faith. It is more demanding . . . [T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). In other words,
Ghee v. Retailers Nat. Bank, 271 F. App'x 858, 859-60 (11th Cir. 2008) (per curiam) (unpublished).
Considering the foregoing analysis, the undersigned
In accordance with the foregoing analysis, it is
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); Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts; 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 before the Magistrate Judge is not specific.
Brown v. Sec'y, Fla. Dep't of Corr., 580 F. App'x 721, 726-27 (11th Cir. 2014) (per curiam) (unpublished).