McConico v. Gordy (INMATE 2)

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

JAMES MCCONICO, JR., )

)

Petitioner, )

)

v. ) Case No.: 7:23-cv-00780-RDP-JHE

)

CHRISTOPHER GORDY, et al., )

)

Respondent. )

MEMORANDUM OPINION

On August 26, 2024, the Magistrate Judge entered a Report and Recommendation

recommending that James McConico, Jr.’s petition for a writ of habeas corpus (1) be denied and

dismissed with prejudice as to his claims relating to his 2018 parole denial, and (2) be dismissed

without prejudice as to Petitioner’s claims relating to his 2023 parole denial. (Doc. # 35).

Respondents objected to the Report and Recommendation contending the 2023 parole denial

claims should be dismissed with prejudice. (Doc. # 36). Although the Magistrate Judge provided

Petitioner with additional time to respond to both the Report and Recommendation and

Respondents’ objections (see docs. # 37 & 39), the court has not received any objections from

Petitioner.

As discussed in the Report and Recommendation, Petitioner faces a one year statute of

limitations to file a federal habeas petition. (See # Doc. 35 at 8-9) (citing 28 U.S.C. § 2244(d)(1)).

That statute of limitations begins to run from one of several possible dates depending on the claim

asserted. See 28 U.S.C. § 2244(d)(1)(A)-(D). For a parole denial claim, the statute of limitations

begins to run on the date on which parole was denied. See Day v. Hall, 528 F.3d 1315, 1317 (11th

Cir. 2008) (beginning the count on “the date the Parole Board denied the second consideration for

parole.”); Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008). The statute of limitations is

tolled while “a properly filed application for State post-conviction or other collateral review” is

pending. 28 U.S.C. § 2244(d)(2). But a federal habeas petition does not toll the statute of

limitations. Duncan v. Walker, 533 U.S. 167, 172 (2001). Once the limitations period expires, a

state application for collateral review has no effect on the timeliness of a future federal habeas

petition; that is, there is nothing left to toll of the limitations period. Tinker v. Moore, 255 F.3d

1331, 1333 (11th Cir. 2001). See also Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (“A

state court filing after the federal habeas filing deadline does not revive it.”).

With regard to Petitioner’s first parole, the Magistrate Judge determined that the denial

occurred on February 28, 2018. (Doc. # 25-3). Petitioner filed four state petitions for certiorari,

but by the time his second petition was filed, there had been more than 365 days where no state

post-conviction proceedings were pending. Petitioner’s deadline to challenge the 2018 parole

denial through a federal habeas petition ran on January 22, 2020. (Doc. # 35 at 9). This petition

was not filed until March 27, 2023, more than one year later. Thus, the Magistrate Judge

recommended that Petitioner’s claims related to his 2018 parole denial be denied.

The Magistrate Judge determined that Petitioner had failed to exhaust his claims

concerning the 2023 parole denial. (Doc. # 35 at 10-11). Since it might have been possible for

Petitioner to raise those claims in state court, the Magistrate Judge recommended that those claims

should be dismissed without prejudice to permit Petitioner an opportunity to exhaust them as

appropriate. (Id.). Respondents’ objection is that the one year statute of limitations to file a federal

habeas petition as to the 2023 parole denial claims, see 28 U.S.C. § 2244(d)(1), passed while this

petition was under submission. (Doc. # 36 at 3-5). Therefore, they argue that any future habeas

petition would be time-barred. (Id. at 3-5).

2

Respondents acknowledge in their objection, however, that they did not raise the statute of

limitations in their answer to the petition. There was a good reason for that. At the time they filed

the answer, the limitations period had not yet run. (Id. at 4-5). The Magistrate Judge had no

obligation to sua sponte consider the statute of limitations as it applies to the 2023 parole denial.

Day v. McDonough, 547 U.S. 198, 209 (2006) (holding that “district courts are permitted, but not

obliged, to consider, sua sponte, the timeliness of a state prisoner’s habeas petition.”). Respondents

are therefore incorrect that the Magistrate Judge erred by failing to consider that issue. (See Doc.

# 36 at 3).1

Petitioner was denied parole on April 18, 2023. (See Doc. # 35 at 5; Doc. # 25-4). Thus,

the statute of limitations expired as of April 19, 2024. Again, Petitioner filed this federal habeas

petition on March 27, 2023, before the statute of limitations expired, and before the April 18, 2023

parole denial itself. (See Doc. 1; Doc. 35 at 5-6). Petitioner chose to raise his claims concerning

the 2023 parole denial through amendments to this petition (see Docs. 9 & 10) rather than by

seeking review in state court. The Magistrate Judge correctly concluded that the court cannot grant

the petition as to any claims based on the 2023 parole denial because those claims were not

exhausted in state court. (See Doc. # 35 at 10-11).2

The court has considered the entire file in this action, together with the Report and

Recommendation and Respondents’ objections, and has reached an independent conclusion that

1 Although the court’s independent review shows that Respondents are correct that the federal limitations

period has now elapsed as to claims related to the 2023 parole denial, as the court indicated above, it might be possible

for Petitioner to raise those in state court.

2 Respondents may raise the statute of limitations arguments regarding the April 18, 2023 parole denial if

Petitioner attempts to refile after exhaustion. But, the court will not issue what would essentially be an advisory

opinion on that issue.

3

the Report and Recommendation is due to be adopted and approved. The court OVERRULES

Respondents’ objection as to the claims related to the 2023 parole denial. Accordingly, (1) the

petition for a writ of habeas corpus as to the 2018 parole denial is due to be denied and dismissed

with prejudice, and (2) the petition for a writ of habeas corpus as to the 2023 parole denial is due

to be dismissed without prejudice. A separate order will be entered.

DONE and ORDERED this September 27, 2024.

R’ DAVID Z. 24 2

CHIEF U.S. DISTRICT JUDGE