McCloud v. Hooks

• Decision Date: 02 March 2009
• Docket Number: No. 07-12708.,07-12708.
• Citation: 560 F.3d 1223
• Parties: Demarcus James McCLOUD, Petitioner-Appellant, v. Ralph HOOKS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

560 F.3d 1223

Demarcus James McCLOUD, Petitioner-Appellant, v. Ralph HOOKS, Respondent-Appellee.

No. 07-12708.

United States Court of Appeals, Eleventh Circuit.

March 2, 2009.

Rick L. Burgess (Court-Appointed), Birmingham, AL, for McCloud.

Jack W. Willis, Montgomery, AL, for Hooks.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and CARNES, Circuit Judges, and HOOD,^* District Judge.

HOOD, District Judge:

Demarcus McCloud ("McCloud" or "Defendant"), an Alabama state prisoner, appeals the dismissal of his federal habeas corpus petition as time-barred under the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). At issue in this case is the impact of Alabama's consolidation rule, Ala. R.Crim. P. 13.3(c), on the timeliness of a defendant's habeas petition, when the defendant pleads guilty to one charge, is convicted by a jury on another charge, and separate judgments are entered against him. The answer to this question materially controls the triggering date for the AEDPA's one-year statute of limitations in the present appeal. After reviewing the parties' written and oral arguments, we hold that the cases against McCloud were severed as a matter of law when two judgments were entered against him by the state trial court and the district court properly dismissed McCloud's petition.

I. BACKGROUND

On March 11, 1998, the Calhoun County Circuit Court, an Alabama trial court, consolidated for trial two criminal cases pending against McCloud pursuant to Alabama Rule of Criminal Procedure 13.3. McCloud was charged with first degree burglary in one case and with capital murder in the other. On March 23, 1998, and before the trial began, McCloud entered a guilty plea to the burglary charge. On March 31, 1998, a jury convicted McCloud of capital murder. On April 23, 1998, McCloud was sentenced to ninety-nine years in the state penitentiary on the burglary conviction. On July 7, 1998, McCloud was sentenced to life without parole on the capital murder conviction. Separate judgments were entered for each crime.

McCloud did not directly appeal his burglary conviction. The Alabama Court of Criminal Appeals affirmed his capital murder conviction on April 30, 1999. See McCloud v. State, 768 So.2d 1022 (Ala. Crim.App.1999) (table); see also Ex Parte McCloud, 780 So.2d 811 (Ala.1999) (table) (Alabama Supreme Court's issuance of certificate of judgment). On May 18, 2000, McCloud filed a petition for post-conviction relief for the burglary conviction under Alabama Rule of Criminal Procedure 32. This petition was signed on April 17, 2000, and in it McCloud stated it would be mailed on April 19, 2000. On May 11, 2004, McCloud filed a successive Rule 32 petition for relief from his burglary conviction, signed on October 13, 2001, and to be mailed on October 30, 2001. The petitions claimed, inter alia, ineffective assistance of counsel, improper grand jury procedures, and that McCloud's guilty plea to the burglary charge was involuntarily given. The Calhoun County Circuit Court denied both petitions on September 9, 2004, for reasons that we need not detail here, and the Alabama Court of Criminal Appeals affirmed this denial on February 18, 2005. The Alabama Supreme Court denied McCloud's petition for writ of certiorari to review his Rule 32 petitions on July 8, 2005. McCloud later filed Rule 32 petitions for relief from his capital murder conviction.

On July 25, 2005, McCloud filed his pro se § 2254 habeas corpus petition raising the following two claims: (1) ineffective assistance of counsel for failure to withdraw McCloud's guilty plea to first-degree burglary, and (2) involuntariness of the burglary guilty plea in that McCloud did not receive any benefit or understand the nature of the plea. McCloud listed both the burglary and capital murder convictions in his habeas petition. He stated the date of judgment of conviction as March 23, 1998, not distinguishing between the two charges. McCloud's petition also stated:

The charge of first degree burgalry [sic] was consolidated with the Capital murder charge. ZOn [sic] the date of trial a plea was entered to the burgalry [sic] charge. McCloud was later convicted of Capital Murder. The appeal was affirmed on 4/30/99 and rehearing was denied on 6/18/99.

Finally, he asserted that he commenced post-conviction collateral review in state court and his motion for review was denied September 9, 2004.

The state responded and argued, inter alia, that the district court should dismiss McCloud's petition as untimely because he did not file it within one year after the state conviction became final pursuant to 28 U.S.C. § 2244(d)(1)(A). Specifically, the state argues that the statute of limitations began to run on June 4, 1998, forty-two days after McCloud was sentenced for burglary and, therefore, it expired on June 5, 1999. McCloud filed his motion for post-conviction relief pursuant to Alabama Rule of Criminal Procedure 32 ("Rule 32 petition") on April 17, 2000. Thus, the state argues that the petition was untimely and due to be dismissed.

In reply, McCloud argues that the burglary charge was never severed from the capital murder charge after the circuit court granted the State's motion for consolidation under Rule 13.3. As a result, he contends that the one-year period was tolled when he directly appealed the capital murder conviction. In addition, McCloud asserts that the period of limitations was also tolled when he filed his Rule 32 petition on May 18, 2000, until after the Alabama Supreme Court denied certiorari as to that petition on July 8, 2005. Thus, he argues that the very latest date that the § 2254 petition would have been due was in April 2006, well after the July 2005 filing date.

A magistrate judge entered a report recommending that the district court deny McCloud's § 2254 petition as untimely. The magistrate found that the conviction for first-degree burglary became final on June 4, 1998, forty-two days after the March 23, 1998, guilty plea to that charge. Therefore, the petition for habeas corpus had to be filed before June 7, 1999, which is one year after the burglary conviction became final, counting from June 5, 1998, and extending to the next business day. The magistrate found that McCloud's Rule 32 petition could not toll the federal limitations period because it had already expired, and therefore, the § 2254 petition was late by more than six years. Furthermore, the magistrate found that the appeal from the capital murder conviction did not toll the habeas limitations period because it was not an appeal from the burglary conviction. The magistrate noted that McCloud knew this because in his Rule 32 petition he said that he had not filed a direct appeal from his burglary conviction. The magistrate also found that McCloud was not entitled to equitable tolling because he failed to demonstrate any extraordinary circumstances beyond his control which prevented him from timely filing his petition. Neither party objected to the magistrate's report, and the district court adopted the findings, accepted the recommendation, and dismissed the § 2254 petition as untimely.

We granted a certificate of appealability ("COA") on one issue: "Whether the district court erred in finding appellant's § 2254 petition untimely in light of Ala. R.Crim. P. 13.3."

II. STANDARD OF REVIEW

This Court reviews de novo the district court's determination that the petition for federal habeas corpus relief was time-barred under the AEDPA. Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir.2003) (citing Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000)); see also 28 U.S.C. § 2244(d). This Court reviews de novo the district court's application of equitable tolling of federal habeas corpus statute's limitations period. Helton v. Sec'y for the Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir.2001).

III. DISCUSSION

The AEDPA establishes a one-year statute of limitations for filing § 2254 petitions, which begins to run following the latest of several possible dates, including the date on which the petitioner's judgment becomes final. See 28 U.S.C. § 2244(d)(1); Alexander v. Sec'y for the Dep't of Corr., 523 F.3d 1291, 1294 (11th Cir.2008). To decide whether a petition for writ of habeas corpus was filed within one-year of the conviction becoming final, we must determine "(1) when the [collateral] motion was filed and (2) when [the] `judgment of conviction' became final." Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir.1999). A pro se petitioner's collateral action is deemed filed in federal court on the date it is delivered to prison authorities for mailing, and absent state-presented evidence to the contrary, we will presume that the petition was delivered on the date the petition was signed. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001). A conviction is final at "the conclusion of direct review or the expiration of the time for seeking such review." Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir.2006) (quoting 28 U.S.C. § 2244(d)(1)(A)). A state prisoner's conviction becomes final when the United States Supreme Court denies certiorari, issues a decision on the merits, or when the ninety day period in which to file for certiorari expires, regardless of whether the defendant raised any federal issues on direct appeal. Nix v. Sec'y for the Dep't of Corr., 393 F.3d 1235, 1236-37 (11th Cir. 2004).

"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 ...." 28 U.S.C. § 2244(d)(2); Cramer v. Sec'y for the Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir.2006). While a Rule 32 petition is a tolling motion under § 2244(d)(2), it cannot toll the one-year limitations period if...