Petty v. Peters et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GAVON JAQUEZ PETTY, )
AIS 311873, )
)
Petitioner, )
)
vs. ) CIV. A. NO. 23-0026-TFM-MU
)
WARDEN KENNETH PETERS,1 )
)
Respondent. )
REPORT AND RECOMMENDATION
Petitioner Gavon Jaquez Petty, a state prisoner in the custody of the respondent,
has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.
(Doc. 1).2 The District Judge assigned to this case referred Petty’s § 2254 petition to the
undersigned Magistrate Judge for consideration and recommendation pursuant to 28
U.S.C. §636(b)(1). (Doc. 4). Having carefully reviewed the record, Petty's petition,
Respondent's answer, and all other documents and exhibits filed in this matter, the
undersigned finds there are sufficient facts and information upon which the issues in this
case may be resolved. Therefore, no evidentiary hearing is required. Based upon the
undersigned's review, it is recommended that the instant petition be dismissed as time
1 The Court has corrected the docket to reflect Warden Kenneth Peters as the properly
named respondent in this action in place of the former warden, Reosha Butler.
Accordingly, the Clerk of Court is DIRECTED to terminate Warden Reosha Butler as
Respondent in this action and to add Warden Kenneth Peters as Respondent.
2 Because Petty is incarcerated at G.K. Fountain Correctional Facility, which is located in
this judicial district, see 28 U.S.C. § 81(c), this Court has jurisdiction to entertain this
§ 2254 petition, see 28 U.S.C. § 2241(d).
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barred under the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations
provision contained in 28 U.S.C. §2244(d).
I. PROCEDURAL HISTORY
A. State Court Proceedings
Petty was indicted for attempted murder, first-degree robbery, and first-degree
burglary in separate indictments in State v. Petty, Geneva County Circuit Court case
numbers CC-16-255, 16-171, and 16-173. (Doc. 10-1, 10-2, 10-3).3 The matters were
subsequently consolidated pursuant to the State’s motion. (Doc. 10-4). On December
8, 2017, Petty, while represented by counsel, pleaded guilty to attempted murder, first-
degree robbery, and first-degree burglary. (Docs. 10-5, 10-6, 10-7; 10-25). On this date,
Petty signed “Plea Bargain Agreement” forms and “Explanation of Rights and Plea of
Guilty” forms. (Doc. 10-5, PageID.97-98; Doc. 10-6, PageID.101-102; Doc. 10-7,
PageID.105-106). A plea colloquy was held before the circuit court. (Doc. 10-25). The
circuit court entered orders on December 8, 2017, adjudging Petty guilty and sentencing
him to concurrent life sentences on each count with credit for time served. (Docs. 10-8,
10-9, 10-10).
On December 13, 2017, Petty filed a pro se motion seeking to withdraw his guilty
plea and for “inefficient counsel…based on misleading facts to accept plea [and] not have
my trial.”4 (Doc. 10-11, PageID.110). Petty’s attorney, Joseph J. Gallo, was permitted to
3 This court takes judicial notice of Petty’s state-court criminal records in State v. Petty,
CC-16-255, 16-171, and 16-173 (Geneva County Circuit Court) available at
www.alacourt.com. See Paez v. Sec’y Fla. Dep’t of Corr., 947 F. 3d 649, 651-652 (11th
Cir. 2020)(per curiam).
4 Petty signed the motion on this date. Under the “prison mailbox rule,” court filings by
pro se inmates are deemed filed on the date delivered to prison authorities for mailing.
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withdraw, and J. Nicholas Bull was appointed as Petty’s new attorney on December 20,
2017. (Doc. 10-13). Petty’s motions were set for hearing on February 15, 2018. (Docs.
10-14, 10-15).
On February 14, 2018, Petty filed a Verified Motion to Withdraw his Motion to Set
Aside Guilty Plea. (Doc. 10-16). Petty represented that he had been confused regarding
parole eligibility and that such confusion was clarified by his newly-appointed counsel.
(Doc. 10-16). Petty further stated that, since the filing of his Motion to Set Aside his plea,
the District Attorney had written a letter to the Board of Pardons and Parole outlining the
intention of plea negotiations that Petty be eligible for consideration of parole at the
conclusion of serving ten years of his concurrent life sentences. (Doc. 10-16). Petty
further acknowledged the court’s sentencing orders would remain in effect upon
withdrawal of this motion, that he had the opportunity to discuss the motion with appointed
counsel, and that he was satisfied with his counsel’s representation. (Doc. 10-16). An
Order granting the Motion to Withdraw Motion to Set Aside was rendered and entered on
February 15, 2018, in each of Petty’s circuit court cases. (Doc. 10-1, PageID.58; Doc.
10-2, PageID.73; and Doc. 10-3, PageID.90).
On February 21, 2018, undated correspondence from Petty to the circuit court
judge was filed stating that he “would like to go through with my guilty plea appeal” and
stating that he felt pressured by his counsel to withdraw his motion to set aside his guilty
Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014). Absent an indication of
the mailing date, inmate papers are deemed filed on the date the inmate signed them.
Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652 (11th Cir. 2020). In Holland v. State,
the Alabama Court of Criminal Appeals adopted a similar rule regarding Rule 32 petitions,
which are deemed filed by a pro se incarcerated prisoner when he hands over the petition
to prison authorities for mailing. 621 So. 2d 373, 375 (Ala. Crim. App. 1993).
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plea on February 14, 2018. (CC-2016-255, Doc. 116)5. The document is identified on the
circuit court Case Action Summaries as “Motion-Other-Request to Appeal His Guilty Plea
Change.” (Doc. 10-1, PageID.58; Doc. 10-2, PageID.73; Doc. 10-3, PageID.90).6 On
February 21, 2018, the trial court denied the request, which appears to be another motion
to withdraw his plea agreement, stating “this Court lacks jurisdiction to hear any appeal
of a guilty plea. Any Notice of Appeal must be filed with the Alabama Court of Criminal
Appeals.” (Doc. 10-18). That same day, attorney J. Nicholas Bull moved to withdraw as
Petty’s attorney, stating that a conflict had arisen. (Doc. 10-17). On the State’s motion,
Petty was remanded to the Alabama Department of Corrections to serve his sentence on
February 22, 2018. (Doc. 10-19).
On February 23, 2018, Petty again filed a Motion to Withdraw Guilty Plea. (Doc.
10-20, PageID.123-24). On March 2, 2018, he filed a motion for Ineffective Assistance
of Counsel. (Doc. 10-20, PageID.125-46). On March 16, 2018, the circuit court entered
an order stating, “The REQUEST CONCERNING PRIOR MOTION TO W/DRAW PLEA
filed by PETTY GAVON JAQUEZ is hereby NOTED. Please see this Court’s Orders of
February 21, 2018, and February 22, 2018. This Court lacks jurisdiction to entertain a
second Motion to Withdraw a guilty plea which entered on December 15, 2017.” (Doc.
10-21). There is nothing in the record before this Court suggesting that Petty filed any
direct appeal of his three guilty plea convictions or relating to his sentences. In fact, Petty
states in his first and second Petitions for Relief from Conviction or Sentence pursuant to
5 This document was not provided with Respondent’s Answer, but the undersigned has
reviewed and taken judicial notice of the filing on Alacourt.
6 In its October 4, 2019, order denying Petty’s original Rule 32 petition, the circuit court
described this document as a “pro se correspondence which appeared to be an attempt
to appeal his guilty plea in Circuit Court.” (Doc. 10-26, PageID.154).
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Rule 32, Alabama Rules of Criminal Procedure, that he did not appeal his judgment of
conviction. (Docs. 10-22, PageID.129; 10-27, PageID.158). Likewise, the circuit court’s
October 4, 2019, order denying Petty’s original Rule 32 Petition states Petty did not
directly appeal his convictions. (Doc. 10-26, PageID.154). Finally, Respondent’s Answer
also states that Alacourt and Respondent’s records demonstrate that Petty did not directly
appeal his three guilty plea convictions. (Doc. 10, PageID.38). Petty states in his §2254
petition that he did appeal from his judgment of conviction, but the date of result
referenced is “Nov. 2022.” Thus, Petty appears to refer to an October 27, 2022, judgment
of the Alabama Court of Criminal Appeals dismissing his attempt to appeal from
undetermined post-conviction ruling(s), rather than a direct appeal. (Doc. 1, PageID.3;
Doc. 10-34; and Doc. 10-35).
B. Rule 32 Proceedings
Petty filed his first Petition for Relief from Conviction or Sentence pursuant to Rule
32, Alabama Rules of Criminal Procedure, on December 28, 2018. (Doc. 10-22). As
grounds for relief, Petty argued that: (1) his conviction was obtained by a violation of the
protection against double jeopardy relative to his guilty plea to first-degree robbery, first-
degree burglary, and attempted murder; and (2) his conviction was obtained by a plea of
guilty, which was unlawfully induced or not made voluntarily with understanding of the
nature of the charge and the consequences of the plea due to ineffective assistance by
his trial counsel, who failed to give him correct information prior to his entry of guilty pleas
relative to his sentences running concurrently, his eligibility for work release, and when
he would be eligible for parole. (Doc. 10-22, PageID.131-38). Petty was granted
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permission to proceed in forma pauperis. (Doc. 10-26, PageID.154). David J. Harrison
was appointed to represent him on March 14, 2019. (Doc. 10-26, PageID.154).
Following an evidentiary hearing, the circuit court denied Petty’s Rule 32 Petition
on October 4, 2019. (Doc. 10-26, PageID.156). The circuit court found Petty’s claims
that his conviction violated the protection against double jeopardy and that his guilty plea
was unlawfully induced or not voluntarily made were without merit. (Doc. 10-26,
PageID.155). The circuit court went on to address Petty’s “veiled” ineffective assistance
of counsel claims and found that trial counsel’s representation was reasonable and
effective, Petty’s claims were not well taken under the standard set forth in Strickland v.
Washington, 466 U.S. 688 (1984), and there was no showing of prejudice. (Doc. 10-26,
PageID.156).
Petty’s appointed counsel, David J. Harrison, moved for permission to withdraw,
which was granted on October 10, 2019. (Doc. 10-37). In its order, the circuit court
declined to appoint appellate counsel until there was a filing of a notice of appeal and
motion to proceed in forma pauperis. (Doc. 10-37). Petty submitted a handwritten letter
to the Clerk of Court postmarked November 15, 2019, in which he stated he had not been
contacted by a new attorney and was unsure how to exercise his rights on rehearing or
appeal. The letter states in part: “Time-limit of 30 days has expired for rehearing and I
ask this letter to confirm request as motion for re-hearing and that the court appoint an
appellant [sic] attorney to represent me at rehearing and or file for rehearing and or
appeal.” (Doc. 10-36). There is nothing in the record before this Court to suggest that
Petty ever filed a notice of appeal and/or a motion to proceed in forma pauperis. Because
Petty did not appeal from the denial of his first Rule 32 petition, that judgment became
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final in state court forty-two days after the denial of the Rule 32 petition, or on November
15, 2019.
Petty attempted to file a second Petition for Relief from Conviction or Sentence
pursuant to Rule 32, Alabama Rules of Criminal Procedure, on June 21, 2021. (Doc. 10-
27). In his second Rule 32 petition, Petty asserts: (1) the indictment was “totally
defective,” and he was prejudiced by his counsel’s failure to defend him against same,
(2) there was no finding of fact at his first Rule 32 evidentiary hearing “for the same
elements, that were insufficient for multiple offenses that were alleged to have came from
the same course of conduct,” (3) he was illegally convicted and sentenced because of his
race, in violation of the U.S. Constitution and Alabama law, (4) his guilty plea was not
knowing and voluntary and did not comply with Alabama law, Alabama’s Constitution, or
the U.S. Constitution, (5) actual innocence, and (6) he was unfairly denied Youthful
Offender status and convicted and sentenced because of his race, in violation of the
United States Constitution. (Doc.10-27, PageID.164-79).
Petty sought to proceed in forma pauperis on his second Rule 32 Petition. The
circuit court denied his In Forma Pauperis Declaration on July 7, 2021, for failure to attach
the appropriate financial documents. (Doc. 10-28). The circuit court again denied in forma
pauperis status to Petty on August 19, 2021, after reviewing the financial information
subsequently submitted in support of Petty’s In Forma Pauperis Declaration. (Doc. 10-
29). The record does not indicate that a filing fee was ever paid or that Petty was ever
granted in forma pauperis status for this second Rule 32 petition.
On April 13, 2022, Petty attempted to file a pleading titled “Rule 32 Petition and
Habeas Corpus Petition Submitted 15-21-1 Code of Alabama” that mirrored the narrative
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of claims submitted in his second Rule 32 Petition. (Doc. 10-31). The circuit court denied
Petty’s Motion to Proceed In Forma Pauperis on April 22, 2022. (Doc. 10-30).
Petty filed a pro se Notice of Appeal to the Court of Criminal Appeals on May 9,
2022. (Doc. 10-32). It is unclear from the Notice what judgment Petty sought to appeal.
The body of the pleading states his intent to appeal a judgment entered May 9, 2022.
(Doc. 10-32). The Court of Criminal Appeals Docketing Statement submitted with the
Notice of Appeal indicates the “Nature of the Case” relates to his Rule 32 Petition and the
“Issue on Appeal” is the denial of in forma pauperis status. (Doc. 10-32, PageID.223).
On August 19, 2022, the Alabama Court of Criminal Appeals sent Petty
correspondence indicating that the docket fee had not been paid and that he appeared to
be attempting to appeal a non-appealable order. (Doc. 10-33). On October 27, 2022, the
Alabama Court of Criminal Appeals entered an Order dismissing the appeal for failure to
pay the docket fee or provide proof that he had been granted leave to proceed on appeal
in forma pauperis or had a pending motion with the trial court seeking leave to proceed in
forma pauperis. (Doc. 10-34). A certificate of judgment was entered on October 27, 2022.
(Doc. 10-35).
C. Federal Habeas Proceedings
Petty filed his Petition for Writ of Habeas Corpus in this Court on January 12, 2023,
under the prison mailbox rule. (Doc. 1). Petty raises the following claims:
1. “U.S. Constitution violation of selective sentence” on the grounds that he was
sentenced to life despite having no prior convictions and where the facts and
evidence prove he is innocent;
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2. His life sentence was racially motivated in violation of the U.S. Constitution and
there were “no mitigating facts”; and
3. “Alabama sentence statute violation” on the grounds that “[r]obbery under
several acts and commission is prohibited by law” and he “is innocent and did
no act.”
(Doc. 1, PageID.5-7). He also appears to argue he was denied in forma pauperis status
because of his race. (Doc. 1, PageID.7). With respect to the timeliness of his petition for
writ of habeas corpus, Petty states he exercised due diligence and that a properly filed
Rule 32 petition was pending at all times. (Doc. 1; PageID.6-8, 11-12).
This Court directed that a response be filed. (Doc. 4). Respondent filed an Answer
on April 14, 2023, arguing that the claims raised by Petty’s §2254 petition are time-barred,
unexhausted, and procedurally defaulted. (Doc. 10).
II. CONCLUSIONS OF LAW
A. Petty’s Petition Is Untimely
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was
enacted on April 24, 1996, and, pertinent to this case, added a new subdivision to 28
U.S.C. §2244 providing for a one-year period of limitations within which state prisoners
must file their habeas corpus petitions pursuant to 28 U.S.C. §2254. Wilcox v. Florida
Dep’t of Corr., 158 F. 3d 1209, 1210 (11th Cir. 1998). Section 2244(d) provides:
(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 limitation 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;
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(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 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 due 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). If a petitioner appeals to the highest state court, he is entitled to an
additional ninety days in which to file a writ of certiorari in the United States Supreme
Court. Sup. Ct. R. 13.1. At the end of that ninety-day period, the one-year limitation starts.
See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002).
Sections (B), (C), and (D) of §2244(d)(1) clearly do not apply to Petitioner’s case,
and Petty makes no showing that any of these subsections apply; therefore, the
timeliness of Petty’s petition must be calculated under §2244(d)(1)(A). Section
2244(d)(1)(A) specifically provides that the one-year limitations period will run from “the
date on which the judgment became final by the conclusion of direct review or the
expiration of time for seeking such review[.]”.
Petty challenges criminal judgments handed down by the Circuit Court of Geneva
County on December 8, 2017. (Doc. 10-8, 10-9, and 10-10). Because Petty did not pursue
a direct appeal of his December 8, 2017 conviction, his conviction would typically become
final 42 days later. See Ala. R. App. P. 4(b)(1). Here, however, Petty timely filed a Motion
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to Withdraw Guilty Plea on December 13, 2017. (Doc. 10-11). “A motion to withdraw a
guilty plea is the functional equivalent of a motion for a new trial, and must be filed within
30 days after the entry of the judgment or the imposition of sentence.” Grier v. State, 825
So. 2d 873, 874 (Ala. Crim. App. 2001)(citing Wallace v. State, 701 So.2d 829, 830 (Ala.
Crim. App. 1997)).
Petty’s motion to withdraw his guilty plea was set for hearing on February 15, 2018,
or more than 60 days after Petty’s sentencing. (Doc. 10-15). It was deemed denied by
operation of law after 60 days under Rule 24.4 of the Alabama Rules of Criminal
Procedure, which states:
No motion for new trial or motion in arrest of judgment shall remain pending
in the trial court for more than sixty (60) days after the pronouncement of
sentence, except as provided in this section. A failure by the trial court to
rule on such a motion within the sixty (60) days allowed by this section
shall constitute a denial of the motion as of the sixtieth day; provided,
however, that with the express consent of the prosecutor and the defendant
or the defendant's attorney, which consent shall appear in the record, the
motion may be carried past the sixtieth day to a date certain; if not ruled
upon by the trial court as of the date to which the motion is continued, the
motion is deemed denied as of that date, unless it has been continued again
as provided in this section. The motion may be continued from time to time
as provided in this section. (Emphasis added).
See Smith v. State, 854 So. 2d 1176, 1178 (Ala. Crim. App. 2002) ( stating that “a motion
to withdraw a guilty plea, as the functional equivalent of a motion for a new trial, may be
denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.). There is nothing before
the record of this Court to indicate that scheduling of the hearing more than 60 days from
sentencing was by agreement of the parties in compliance with Ala. R. Crim. P. 24.4. See
Casteel v. State, 21 So. 3d 11, 12 (Ala. 2008) (holding that motion to withdraw guilty plea
was deemed denied by operation of law where the trial court scheduled a hearing on the
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motion 76 days from the date of sentencing and there was no indication the scheduling
was by consent of the parties in compliance with Ala. R. Crim. P. 24.4). Because the
circuit court did not rule on the motion to withdraw the guilty plea within 60-days from
sentencing, it was deemed denied by operation of law on February 6, 2018, or prior to
the date the circuit court granted Petty’s Verified Motion to Withdraw his Motion to Set
Aside Guilty Plea on February 15, 2018.7
Petty had 42 days from the date his motion to withdraw guilty plea was deemed
denied by operation of law, or until March 20, 2018, to file an appeal. See Ala. R. App.
P. 4(b)(1) (“If a motion in arrest of judgment, motion for new trial, or motion for judgment
of acquittal has been filed within 30 days from pronouncement of the sentence, an appeal
may be taken within 42 days (6 weeks) after the denial or overruling of the motion.”);
Johnson v. State, 18 So. 3d 969, 972 (Ala. Crim. App. 2009). Because Petty did not file
a direct appeal, his conviction and sentence became final for purposes of §2244(d)(1) on
March 20, 2018, when the time to file an appeal expired. See Ala. R. App. P. 4(b)(1).
Pursuant to Rule 6(a)(1) of the Federal Rules of Civil Procedure, the date of the
event that triggers a time period is excluded from its computation. Thus, the one-year
federal statute of limitations began to run on March 21, 2018, and, in the absence of a
tolling event, Petty had until March 21, 2019, to file his federal habeas petition. As he did
not file his federal habeas petition until January 12, 2023, Petty’s habeas petition is
7 It does not appear from Petty’s state court criminal records available on Alacourt that
the motion was carried past the sixtieth day to a date certain with the express consent of
the prosecutor and Petty or Petty’s attorney. Even if this were the case, and Petty’s motion
to withdraw his guilty plea was not denied by operation of law, it was effectively denied
when the circuit court granted Petty’s motion to withdraw his motion to set aside guilty
plea on February 15, 2018.
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untimely on its face. Because Petty’s habeas petition is untimely on its face, it must be
dismissed unless he can avail himself of statutory or equitable tolling.
Statutory tolling is codified at 28 U.S.C. §2244(d)(2), which states that “[t]he 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 section.” “The United States Supreme Court has
interpreted the word ‘pending’ to ‘cover the time between a lower state court's decision
and the filing of a notice of appeal to a higher state court.’” Cramer v. Sec’y, Dep’t of Corr.,
461 F. 3d 1380, 1383 (11th Cir. 2006)(per curiam)(citing Carey v. Saffold, 536 U.S. 214,
217 (2002); Jones v. Nagle, 349 F.3d 1305, 1307 (11th Cir. 2003)). The claim remains
“pending” until the time to seek review expires, even if the petitioner does not actually
pursue an appeal from the denial of post-conviction relief. Cramer v. Sec’y, Dep’t of Corr.,
461 F. 3d 1380, 1383 (11th Cir. 2006).
Section 2244(d)(2) “does not limit tolling solely to collateral attacks which contain
federally cognizable claims. Rather, the statute specifically provides tolling for any post-
conviction petition for relief with respect to the pertinent judgment.” Ford v. Moore, 296
F.3d 1035, 1038 (11th Cir. 2002). A Section 2244(d)(2) application “must set forth the
grounds upon which it is based, and must state the relief desired; it must attack collaterally
the relevant conviction or sentence.” Sibley v. Culliver, 377 F.3d 1196, 1200 (11th Cir.
2004) (quoting Voravongsa v. Wall, 349 F.3d 1, 6 (1st Cir. 2003), cert. denied, 541 U.S.
963 (2004)).
Although Petty filed additional motions to withdraw his guilty plea, these motions
were not “properly filed” pursuant to Alabama law. Petty filed his undated
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correspondence, which appears to be a motion to withdraw his guilty plea, on February
21, 2018, as well as another motion to withdraw his guilty plea on February 23, 2018;
however, both of these were filed more than 30 days after the pronouncement of his
sentence on December 8, 2017. Thus, the motions were untimely.8 See Grier v. State,
825. So. 2d 873, 874 (Ala. Crim. App. 2001) (“A motion to withdraw a guilty plea is the
functional equivalent of a motion for a new trial, and must be filed within 30 days after the
entry of the judgment or the imposition of sentence.”). Because Petty’s subsequent
motions to withdraw his guilty plea were untimely, said motions do not toll the AEDPA
statute of limitations. See 28 U.S.C. §2244(d)(2); see also Allen v. Siebert, 552 U.S. 3, 4
(2007) (per curiam) (“When a postconviction [application] is untimely under state law, that
is the end of the matter for purposes of §2244(d)(2).” (alteration adopted) (internal
quotation marks and citations omitted)).
Petty timely filed a Rule 32 post-conviction petition on December 28, 2018, (Doc.
10-22), or 283 days after his convictions became final on March 20, 2018. The circuit
court denied his petition on October 4, 2019. (Doc. 10-26). Petty had 42 days from the
denial of his Rule 32 petition on October 4, 2019, to appeal same, or until November 15,
2019.9 Although Petty did not pursue an appeal of the denial of his original Rule 32
petition, his application for post-conviction relief remained “pending” until the time to
8 The undersigned assumes without deciding that Petty’s motions to withdraw his guilty
plea constitute an application for state collateral review within the meaning of 28 U.S.C.
§2244(d)(2). See Colbert v. Head, 146 F. Appx 340, 343 (11th Cir. 2005) (unpublished)
(per curiam); 11th Cir. Rule 36-2 (“Unpublished opinions are not considered binding
precedent, but they may be cited as persuasive authority.”).
9 Petty sent correspondence to the circuit court postmarked November 15, 2019, in which
he asked the court to appoint an attorney to file for rehearing or an appeal. (Doc. 10-36).
However, there is no suggestion in the record before this Court that Petty ever filed a
Notice of Appeal with respect to the denial of his initial Rule 32 petition.
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appeal the denial of his application for post-conviction relief lapsed. See Cramer, 461 F.
3d 1383. Petty then had 82 days remaining of the one-year limitation period within which
to timely file his federal habeas petition, or until February 5, 2020.
Petty’s second Rule 32 petition and the pleading titled “Rule 32 Petition and
Habeas Corpus Petition Submitted 15-21-1 Code of Alabama” were not “properly filed”
within the meaning of §2244(d)(2) because the circuit court denied his in forma pauperis
motions and no filing fees were ever paid. (Docs. 10-27 to 10-31). “An application is ‘filed,’
as that term is commonly understood, when it is delivered to, and accepted by, the
appropriate court officer for placement into the official record.” Artuz v. Bennett, 531 U.S.
4, 8 (2000). An application for post-conviction relief is “‘properly filed’ when its delivery
and acceptance are in compliance with the applicable laws and rules governing filings.”
Artuz v. Bennett, 531 U.S. 4, 8 (2000). “These usually prescribe, for example, the form of
the document, the time limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee.” Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Under Alabama law, Rule 32 petitions must be “accompanied by the filing fee
prescribed by law or rule in civil cases in the circuit court unless petitioner applies for and
is given leave to prosecute the petition in forma pauperis.” Ala. R. Crim. P. 32.6(a). Petty
did not pay the filing fees nor was he granted IFP status to prosecute his second and third
Rule 32 petitions. Therefore, Petty’s second Rule 32 petition and his “Rule 32 Petition
and Habeas Corpus Petition Submitted 15-21-1 Code of Alabama” pleading were not
formally “filed” and were not “properly filed” for purposes of 28 U.S.C. §2244(d)(2). See
Robinson v. Carter, 2024 WL 3462417 (S.D. Ala. 4/22/2024). In sum, Petty’s attempted
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pleadings had no impact on the timing of his AEDPA-imposed filing deadline because
statutory tolling under §2254(d)(2) is inapplicable.
Even if they had been “properly filed,” Petty’s second Rule 32 petition and “Rule
32 Petition and Habeas Corpus Petition Submitted 15-21-1 Code of Alabama” were filed
after his AEDPA limitations period expired on February 5, 2020, and they did not reset
the limitations period. See Sibley, 377 F. 3d at 1204 (“A state court filing after the federal
habeas filing deadline does not revive it.”) (citation omitted); and Webster v. Moore, 199
F.3d 1256, 1259 (11th Cir. 2000), cert. denied, 531 U.S. 991 (2000) (“[E]ven ‘properly
filed’ state-court petitions must be ‘pending’ [during the one-year period of limitation] in
order to toll the limitations period. 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.”). Petty attempted to file his second Rule 32 petition on June 21,
2021. (Doc. 10-27). He attempted to file the “Rule 32 Petition and Habeas Corpus Petition
Submitted 15-21-1 Code of Alabama” pleading on April 13, 2022. (Doc. 10-31). As he
attempted to file these pleadings after the expiration of the limitations period, they cannot
toll that period because there is no period remaining to be tolled. See Webster, 199 F.3d
at 1259. For the same reason, Petty’s Notice of Appeal filed on May 9, 2022, did not toll
the period in which Petty could bring his federal habeas petition, as there was no running
limitations period to toll.
Petty did not file the instant §2254 petition until January 12, 2023, or long after the
expiration of the limitations period on February 5, 2020.10 (Doc. 1, PageID.13).
10 Even if the February 15, 2018, date (the date on which the circuit court granted Petty’s
motion to withdraw his motion to set aside guilty plea) were used to compute the date on
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Thus, Petty’s federal habeas petition is time-barred unless he can demonstrate that he is
entitled to equitable tolling or make a credible showing of actual innocence of the crimes
for which he pled guilty and was sentenced.
B. Equitable Exceptions Do Not Apply
AEDPA’s statute of limitations for §2254 habeas petitions is “subject to equitable
tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010). 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.” Id. at 649, quoting Pace, 544 U.S. at 418. “Equitable tolling is an
extraordinary remedy which is typically applied sparingly.” Steed v. Head, 219 F.3d 1298,
1300 (11th Cir. 2000).
“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.’”
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (citation omitted). Consequently,
the one-year limitations provision need not be equitably tolled unless there is evidence
that “extraordinary circumstances” beyond petitioner’s control made it impossible for him
which Petty’s convictions became final, Petty’s federal habeas corpus petition would
remain untimely. Using this alternate date, Petty would have had until March 29, 2018,
to appeal his convictions. Petty’s one-year period in which to file his §2254 petition would
have commenced on March 30, 2018, and 274 days would have passed when he filed
his initial Rule 32 petition on December 28, 2018. When the time to appeal the denial of
his initial Rule 32 petition lapsed on November 15, 2019, Petty would have had 91 days
remaining of the one-year limitation period within which to timely file his federal habeas
corpus petition, or until February 14, 2020. Petty did not file the instant petition until
January 12, 2023. Thus, the instant §2254 petition remains untimely even using the
alternative date of February 15, 2018.
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to file his petition on time. See Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618-619
(3rd Cir. 1998) (“[E]quitable tolling is proper only when the ‘principles of equity would
make [the] rigid application [of a limitation period] unfair.’ ... Generally, this will occur when
the petitioner has ‘in some extraordinary way ... been prevented from asserting his or her
rights.’ ... The petitioner must show that he or she ‘exercised reasonable diligence in
investigating and bringing [the] claims.’ ... Mere excusable neglect is not sufficient.”).
“The burden of proving circumstances that justify the application of the equitable
tolling doctrine rests squarely on the petitioner.” San Martin v. McNeil, 633 F.3d 1257,
1268 (11th Cir. 2011). A petitioner’s “allegations supporting equitable tolling must be
specific and not conclusory.” Hutchinson v. Florida, 677 F. 3d 1097, 1099 (11th Cir. 2012).
Here, Petty contends the instant habeas corpus petition is not time-barred and was
timely filed because he exercised “due diligence” and because “ever since the U.S. Const.
violations and at all times a properly filed Rule 32 was pending in state court.” (Doc. 10-
1, PageID.11-12). As outlined above, Petty’s first Rule 32 petition was “pending” from the
date of filing on December 28, 2018, until the time to appeal the denial of his application
for post-conviction relief expired on November 15, 2019. See Cramer, 461 F. 3d at 1383.
When the AEDPA clock resumed, Petty had 88 days remaining within which to timely file
his federal habeas petition, or until February 5, 2020. As discussed above, Petty’s
attempted second and third Rule 32 petitions had no impact on the timing of his AEDPA-
imposed filing deadline because they were not “properly filed” and were filed after the
time within which to timely file a federal habeas petition expired.
Petty offers only the conclusory statement that “due diligence was done” without
demonstrating that he exercised reasonable diligence in investigating and bringing his
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claims. Further, Petty has neither alleged nor demonstrated that extraordinary
circumstances beyond his control prevented him from filing a timely habeas petition in
this Court. Without any explanation for the delay in Petty filing this habeas corpus petition,
this Court cannot equitably toll the limitations period.
There also exists a “miscarriage of justice” exception to AEDPA’s one-year statute
of limitations by which a federal court can also consider the merits of an untimely § 2254
petition if the petitioner establishes that he is factually innocent of the crime for which he
was convicted. In McQuiggin v. Perkins, 569 U.S. 383, 399 (2013), the United States
Supreme Court specifically held that “actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural bar…or, as
in this case, expiration of the statute of limitations.” To qualify for this exception, Petty
would have to put forth new and credible evidence showing “it is more likely than not that
no reasonable juror would have convicted him in light of the new evidence.” Id. at 399.
In support of the instant habeas corpus petition, Petty states: “Petitioner was
sentenced to life where Petitioner had no prior criminal conviction. Petitioned received
sentence where facts [and] evidence prove that petitioner is innocent.” (Doc. 1,
PageID.7). Although Petty proclaims his innocence, he offers no new evidence
demonstrating actual innocence. (See Doc. 1). Thus, the fundamental miscarriage of
justice exception to the one-year limitations period does not apply. See McQuiggen, 569
U.S. at 399.
In sum, Petty’s petition does not support the application of equitable tolling for his
AEDPA-imposed deadline, nor has he included supporting facts which could establish the
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miscarriage of justice/actual innocence exception. Accordingly, Petty’s untimely petition
remains time-barred and is due to be dismissed with prejudice.11
III. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the undersigned
recommends that a certificate of appealability 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 certificate of appealability. 28 U.S.C. §
2253(c)(1). 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. § 2243(c)(2).
Where, as here, a habeas petition is being denied on procedural grounds without
reaching the merits of the underlying constitutional claims, a certificate of appealability
“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); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (“Under the controlling standard, a petitioner must
‘sho[w] 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.”’”). In the instant case, a
11 Because the Court finds that Petty’s petition is time-barred, it is not necessary to reach
any other arguments raised by Respondent.
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reasonable jurist could not conclude either that this Court is in error in dismissing the
instant petition or that Petty 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.”).
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 either party, that party may bring this argument to
the attention of the district judge in the objections permitted to this report and
recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit
order denying petitioner’s motions for a COA and to appeal IFP in a case in which this
Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL
3241817, at *20 (S.D. Ala. June 28, 2011) (providing for the same procedure), report and
recommendation adopted by 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v.
DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same
procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010
WL 3943699 (N.D. Fla. Oct. 5, 2010).
IV. CONCLUSION
The undersigned Magistrate Judge RECOMMENDS that the petition for writ of
habeas corpus filed by Petitioner Gavon Jaquez Petty, pursuant to 28 U.S.C. § 2254, be
DISMISSED as time-barred under § 2244(d). Petty is not entitled to a certificate of
appealability and, therefore, he is not entitled to appeal in forma pauperis.
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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. Gen. LR 72(c)(1) & (2). 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. 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 the 24th day of February, 2025.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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