Pugh v. Gordy

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JASON PUGH, 	)
AIS # 00212315, 	)
Petitioner, 	)
)
v. 	) 	CIVIL ACTION NO. 1:22-00322-KD-N
)
CHRISTOPHER GORDY, 	)
Correctional Warden III, 	)
Bibb Correctional Facility, 	)
Respondent. 	)
ORDER
As 	ordered 	(see 	Doc# 	29), 	the 	Respondent, 	through 	the 	Office 	of 	the
Attorney General of the State of Alabama, has timely filed and served an
Answer (Doc# 42) to the operative Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2254 (Doc# 5), as supplemented (Docs# 13, 18, 19) filed by Petitioner
Jason Pugh, an Alabama prisoner proceeding without counsel (pro se). The
assigned District Judge has referred the petition and answer to the undersigned
Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b); (9/20/2022
& 	7/9/2024 	electronic 	references). 	Under 	S.D. 	Ala. 	GenLR 	72(a)(2)(R), 	the
undersigned 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.
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 1 of 8 PageID#
<pageID>

Under Rule 5(e) of the Rules Governing Section 2254 Cases in the United
States District Courts, “[t]he petitioner may file a reply to the respondent’s
answer or other pleading[, and t]he judge must set the time to file unless the
time is already set by local rule.” As the Court currently has no local rule setting
the 	time 	for 	a 	habeas 	petitioner 	to 	reply, 	the 	undersigned 	hereby 	sets
JANUARY 24, 2025, as the deadline for Pugh to file and serve any additional
reply to the Respondent’s Answer after which Brown’s habeas petition will be
taken under submission.1 Except as permitted by S.D. Ala. CivLR 7(f)(3),2 once
the petition is under submission, no further submissions related to the issues
raised may be filed unless the proponent first obtains leave of court for good
cause shown. The undersigned will then review the parties’ submissions under
Rules 7 and 8 of the Rules Governing Section 2254 Cases to determine whether
expansion 	of 	the 	record 	and/or 	an 	evidentiary 	hearing 	is 	warranted. If 	an
evidentiary hearing is not warranted, a recommendation as to the appropriate
disposition of Pugh’s petition shall issue in due course.
1 Pugh has already filed numerous motions and notices with the Court since the
Answer was filed.
2 “If pertinent and significant authority comes to a party’s notice after the briefs have
been filed, but before decision, a party may promptly advise the Court by notice setting
forth the citations and stating the reason the authority was not cited in the party’s
brief. The notice must specifically refer either to a page of the brief(s) already filed or to
a point argued orally. The notice may not exceed two (2) pages and must not present a
new argument. No response may be filed unless the presiding Judge so authorizes.”
S.D. Ala. CivLR 7(f)(3).
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 2 of 8 PageID#
<pageID>

Because Pugh’s habeas petition was filed after April 24, 1996, it is subject
to application of the Anti-Terrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”). E.g., Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1281 (11th Cir. 2012), cert. denied, 133 S. Ct. 1625 (2013).
“Under AEDPA, if a petitioner’s claims have been ‘adjudicated on the merits in
State court,’ a federal court cannot grant habeas relief unless the state court’s
adjudication of the claims (1) ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,’ or (2) ‘was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.’ ”
Hittson v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014) (quoting 28
U.S.C. 	§ 	2254(d)), cert. 	denied, 	135 	S. 	Ct. 	2126 	(2015). 	“AEDPA 	erects 	a
formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court. AEDPA requires a state prisoner to show that the
state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error beyond any possibility for fairminded
disagreement. If this standard is difficult to meet—and it is—that is because it
was meant to be. [Federal courts] will not lightly conclude that a State’s criminal
justice 	system 	has 	experienced 	the 	extreme 	malfunction 	for 	which 	federal
habeas relief is the remedy.” Burt v. Titlow, 571 U.S. 12, 19-20, 134 S. Ct. 10, 16,
187 L. Ed. 2d 348 (2013) (internal citations and quotations omitted).
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 3 of 8 PageID#
<pageID>

AEDPA also imposes the following time limit for bringing § 2254 habeas
petitions:
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;
(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.
28 U.S.C. § 2244(d)(1). See also Rule 3(c) of the Rules Governing Section 2254
Cases in the United States District Courts (“The time for filing a petition is
governed by 28 U.S.C. § 2244(d).”).
The 	Respondent 	asserts 	that 	Pugh’s 	petition 	is 	time-barred 	under 	§
2244(d). If that is found to be the case, Pugh is given notice that certain
equitable exceptions may excuse an untimely habeas claim. First,
the district court may still review an untimely petition filed by a
petitioner entitled to equitable tolling. As the Supreme Court has
explained, the time period specified in 28 U.S.C. § 2244 is a statute
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 4 of 8 PageID#
<pageID>

of limitations, not a jurisdictional bar, and Section 2244 does not
bar 	the 	application 	of 	equitable 	tolling 	in 	an 	appropriate 	case.
Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549, 2560, 177 L. Ed.
2d 130 (2010).
The Supreme Court [has ]affirmed, however, 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.” Id. at
2562 (internal quotation marks omitted); Sandvik v. United States,
177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam) (holding that
equitable tolling is available “when a movant untimely files because
of extraordinary circumstances that are both beyond his control and
unavoidable 	even 	with 	diligence”). 	“The 	diligence 	required 	for
equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum
feasible diligence.’ ” Holland, 130 S. Ct. at 2565 (internal quotation
marks 	and 	citation 	omitted). 	As 	for 	the 	“extraordinary
circumstance” prong, [it] require[s] a defendant to show a causal
connection between the alleged extraordinary circumstances and
the late filing of the petition. See Lawrence v. Florida, 421 F.3d
1221, 1226–27 (11th Cir. 2005).
San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (footnote omitted).
Second,
[i]n McQuiggin[ v. Perkins], the Supreme Court held that a federal
habeas petitioner can qualify for an equitable exception to the one-
year statute of limitation and obtain federal review of his claims
about 	constitutional 	errors 	in 	his 	state 	court 	proceedings 	if 	he
satisfies the threshold test established in Schlup[ v. Delo, 513 U.S.
298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)]. 	McQuiggin, 133 S.
Ct. 	[1924,] 	1928[ 	(2013)]. 	Under 	that 	test, 	the 	petitioner 	must
“persuade[ ] the [habeas] court that, in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” Id. (quoting Schlup, 513 U.S. at 329, 115 S. Ct.
at 868). The test devised in Schlup is intended to “ensure[ ] that
[the] petitioner's case is truly extraordinary, while still provide
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 5 of 8 PageID#
<pageID>

petitioner 	a 	meaningful 	avenue 	by 	which 	to 	avoid 	a 	manifest
injustice.” 513 U.S. at 327, 115 S. Ct. at 867 (internal quotation
marks and citation omitted). The petitioner must prove that “he is
‘actually innocent,’ ” id. at 327, 115 S. Ct. at 867, by producing “new
reliable evidence ... not presented at trial,” id. at 324, 115 S. Ct. at
865, that “raise[s] sufficient doubt about [his] guilt to undermine
confidence in the result of the trial,” id. at 317, 115 S. Ct. at 862.
Brown v. Sec'y, Fla. Dep't of Corr., 580 F. App'x 721, 726–27 (11th Cir. 2014)
(per curiam) (unpublished).
In addition to challenging Pugh’s petition as untimely, the Respondent
also asserts that Pugh failed to exhaust his claims in state court.
“Before a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court.” O'Sullivan
v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1
(1999); accord Ogle v. Johnson, 488 F.3d 1364, 1368 (11th Cir. 2007)
(“The habeas statute requires applicants to exhaust all available
state law remedies before filing a federal habeas petition.”); 28
U.S.C § 2254(b)(1)(A). “Under the exhaustion requirement, a habeas
petitioner 	challenging 	a 	state 	conviction 	must 	first 	attempt 	to
present his claim in state court.” Harrington v. Richter, 562 U.S. 86,
103, 131 S. Ct. 770, 178 L.Ed.2d 624 (2011); see also Picard v.
Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)
(“Only if the state courts have had the first opportunity to hear the
claim sought to be vindicated in a federal habeas proceeding does it
make sense to speak of the exhaustion of state remedies.”). “The
exhaustion requirement springs from principles of comity, which
protect the state court's role in the enforcement of federal law and
prevent disruption of state court proceedings.” Ward v. Hall, 592
F.3d 1144, 1156 (11th Cir. 2010). “Consistent with the purpose of
the exhaustion rule, ‘state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process.’ ”
Pruitt 	v. 	Jones, 	348 	F.3d 	1355, 	1359 	(11th 	Cir. 	2003) 	(quoting
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 6 of 8 PageID#
<pageID>

O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728); accord Ward, 592 F.3d
at 	1156 	(“[T]o 	exhaust 	state 	remedies, 	a 	petitioner 	must 	fairly
present every issue raised in his federal petition to the state's
highest court, either on direct appeal or on collateral review.”). In
the context of a habeas proceeding in the Alabama state courts, one
complete round of Alabama’s established appellate review process
means that the claim must be presented on appeal to the Alabama
Court of Criminal Appeals and on petition for discretionary review
to the Alabama Supreme Court. See Pruitt, 348 F.3d at 1359.
Freeman v. Comm'r, Ala. Dep't of Corr., 46 F.4th 1193, 1216–17 (11th Cir. 2022),
cert. denied, 143 S. Ct. 1785 (2023). “The teeth of the exhaustion requirement
comes from its handmaiden, the procedural default doctrine. If the petitioner
has failed to exhaust state remedies that are no longer available, that failure is
a procedural default which will bar federal habeas relief…” Smith v. Jones, 256
F.3d 1135, 1138 (11th Cir. 2001). The Respondent asserts that Pugh’s petition is
procedurally defaulted because he did not subject his claims to one complete
round of state court review and is now procedurally barred from doing so.
If this is found to be the case, then
[a] procedurally defaulted claim can support federal habeas relief in
only two narrow situations. First, the petitioner may demonstrate
cause and prejudice. Cause exists if there was “some objective factor
external to the defense [that] impeded counsel’s efforts to comply
with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986). Such external
impediments include evidence that could not reasonably have been
discovered in time to comply with the rule; interference by state
officials that made compliance impossible; and ineffective assistance
of counsel at a stage where the petitioner had a right to counsel. Id.
In addition to cause, the petitioner must also show prejudice: that
“there is at least a reasonable probability that the result of the
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 7 of 8 PageID#
<pageID>

proceeding 	would 	have 	been 	different” 	had 	the 	constitutional
violation not occurred. Henderson v. Campbell, 353 F.3d 880, 892
(11th Cir. 2003).
Even 	without 	cause 	and 	prejudice, 	the 	procedural 	default 	of 	a
constitutional claim may be excused if enforcing the default would
result 	in 	a 	fundamental 	miscarriage 	of 	justice. 	This 	exception
applies if the petitioner can show that, in light of new evidence, it is
probable that no reasonable juror would have convicted him. Schlup
v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L. Ed. 2d 808
(1995). By making this showing of actual innocence, the petitioner
may overcome the procedural default and obtain federal review of
the constitutional claim. Id.
Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008).
DONE and ORDERED this the 30th day of December 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Case 1:22-cv-00322-KD-N Doc# 63 Filed 12/30/24 Page 8 of 8 PageID#
<pageID>