# Horton v. Hood (INMATE 3)

> District Court, M.D. Alabama · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/9987461

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** September 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION

ZYRELL HORTON, # 253522, )
)
Petitioner, )
)
v. ) CIVIL ACTION NO.
) 3:18-cv-886-WHA-CSC
PATRICIA HOOD, et al., ) (WO)
)
Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE
Before the Court is a petition for writ of habeas corpus under 28 U.S.C. § 2254 filed
on September 23, 2018, by Zyrell Horton, an Alabama inmate proceeding pro se. Doc. 1.1
Horton challenges his 2007 Chambers County conviction and 25-year sentence for
attempted murder. Respondents argue that Horton’s petition is time-barred under
AEDPA’s one-year limitation period, 28 U.S.C. § 2244(d). Docs. 11, 21. The Court agrees
with Respondents and, consequently, finds that Horton’s petition should be denied without
an evidentiary hearing and that this case should be dismissed with prejudice.
I. BACKGROUND
On March 1, 2007, a Chambers County jury found Horton guilty of attempted
murder, in violation of ALA. CODE §§ 13A-4-2, 13A-6-2(a)(1). Doc. 1 at 1. On April 6,
2007, the trial court sentenced Horton to 25 years in prison. Doc. 1 at 1. Horton appealed,

1 References to “Doc(s).” are to the document numbers of the pleadings, motions, and other materials in the
court file, as compiled and designated on the docket sheet by the Clerk of Court. Pinpoint citations are to
the page of the electronically filed document in the court’s CM/ECF filing system, which may not
correspond to pagination on the “hard copy” of the document presented for filing.
and on September 21, 2007, the Alabama Court of Criminal Appeals affirmed his
conviction and sentence by memorandum opinion. Doc. 9-1. Horton did not seek certiorari

review in the Alabama Supreme Court. On October 11, 2007, the Alabama Court of
Criminal Appeals issued a certificate of judgment. Doc. 9-2.
Over three years later, on March 31, 2011, Horton filed a petition in the state trial
court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal
Procedure. Doc. 11-1 at 5–18. On September 14, 2011, the trial court entered an order
denying Horton’s Rule 32 petition. Doc. 11-1 at 27. Horton appealed, and on January 27,

2012, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming
the trial court’s denial of the Rule 32 petition. Doc. 9-3. Horton did not seek certiorari
review in the Alabama Supreme Court. The Alabama Court of Criminal Appeals issued a
certificate of judgment on February 15, 2012. Doc. 9-4.
In December 2016, Horton filed a second Rule 32 petition with the trial court. Doc.

9-5 at 2; Doc. 9-6. That Rule 32 petition was pending in the trial court when Horton filed
this § 2254 petition and was denied in September 2019. Doc. 14-1 at 1–2. Horton did not
appeal that denial.
On September 23, 2018, Horton filed this petition for writ of habeas corpus under
28 U.S.C. § 2254.2 In his petition, Horton asserts claims regarding his failure to receive a

Miranda warning3 when he was arrested; a claim of “false indictment” because

2 Although the petition was date-stamped as received in this court on October 15, 2018, Horton represents
that he delivered the petition to prison officials for mailing on September 23, 2018. Doc. 1 at 15. Thus,
under the prison mailbox rule, the court deems Horton’s petition to be filed on September 23, 2018.

3 Miranda v. Arizona, 384 U.S. 436 (1966).
“petitioner’s identity was never verified” during the proceedings; and a claim of “false
imprisonment (cruel and unusual punishment)” based on his failure to receive a Miranda

warning. Doc. 1 at 5–9. On August 6, 2020, Horton filed an amendment to his § 2254
petition presenting, in narrative fashion, what appear to be claims of ineffective assistance
of counsel, illegal arrest, excessive sentence, insufficient evidence, and fraud in his
prosecution. Doc. 16 at 1–13.
Respondents have filed answers arguing that Horton’s § 2254 petition and the
claims in his amendment are time-barred under AEDPA’s one-year limitation period. Docs.

9, 11, 21.
II. DISCUSSION
A. Timeliness of Horton’s Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) includes a
one-year statute of limitations for filing a § 2254 petition. Title 28 U.S.C. § 2244(d) of

AEDPA states:
(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;

(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).
Under § 2244(d)(1)(A), a state prisoner’s 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 § 2244(d)(1)(A)). A state prisoner’s conviction
becomes final when the United States Supreme Court denies a petition for writ of certiorari
or decides on the merits, or when the 90-day period in which to petition the Supreme Court
for certiorari expires. Nix v. Sec’y for the Dep’t of Corr., 393 F.3d 1235, 1236–37 (11th
Cir. 2004). See, also, e.g., Coates v. Byrd, 211 F. 3d 1225 (11th Cir. 2000); Rule 13.1,
Rules of U.S. Supreme Court. When certiorari review in the state’s highest court is not
sought, the U.S. Supreme Court lacks jurisdiction to review a petition for writ of certiorari.
See Rule 13.1, Rules of U.S. Supreme Court; 28 U.S.C. § 1257(a).
During the direct-review stage of his case, Horton did not seek certiorari review in
the Alabama Supreme Court. His failure to do so precluded his seeking certiorari review
in the U.S. Supreme Court. Therefore, for purposes of AEDPA, his conviction became
final, and the one-year limitation period in § 2244(d)(1)(A) began to run, on October 11,
2007—the date on which the Alabama Court of Criminal Appeals issued a certificate of
judgment in the direct-review proceedings. Brown v. Hooks, 176 F. App’x 949, 951 (11th
Cir. 2006). Absent statutory or equitable tolling, then, Horton had until October 13, 2008—

—the first business day after October 11, 2008—to file a § 2254 petition.
B. Statutory Tolling
Under 28 U.S.C. § 2244(d)(2), AEDPA’s one-year limitation period is tolled during
the pendency in the state courts of a properly filed state petition challenging the petitioner’s
conviction and sentence. Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th Cir. 2001).
Horton does not get the benefit of this tolling provision, however, because, on March 31,

2011, when he filed his first Alabama Rule 32 petition, the federal limitation period had
already expired—having run unabated for the full year after October 11, 2007. A Rule 32
petition filed after expiration of AEDPA’s limitation period does not toll the federal statute,
because no time remains to be tolled. “[O]nce a deadline has expired, there is nothing left
to toll.” Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). “A state court filing after

the federal habeas deadline does not revive” the statute of limitations period applicable to
federal habeas review. Id.
Nor did Horton’s second Rule 32 petition—filed in December 2016—have a tolling
effect under § 2244(d)(2). As with Horton’s first Rule 32 petition, his second Rule 32
petition was filed after the federal limitation period had expired.

The tolling provisions of 28 U.S.C. § 2244(d)(1)(B) through (D) provide no safe
harbor for Horton by affording a different triggering date such that AEDPA’s limitation
period commenced on some date later than October 11, 2007, or expired on some date later
than October 13, 2008. There is no evidence that an unlawful state action impeded Horton
from filing a timely § 2254 petition, see § 2244(d)(1)(B), and Horton presents no claim
resting on a “right [that] has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review,” see § 2244(d)(1)(C). Horton also
presents no ground for relief with a factual predicate not discoverable earlier with due
diligence. See 28 U.S.C. § 2244(d)(1)(D).
The AEDPA statute of limitations for Horton to file his § 2254 petition expired on
October 13, 2008. He filed his § 2254 petition on September 23, 2018—almost 10 years
after the limitation period expired. Clearly, then, his petition is untimely under 28 U.S.C.

§ 2244(d)(1)(A). The same time-bar applies to Horton’s amended claims filed in August
2020—almost two years after he filed his untimely petition.
C. Equitable Tolling
The limitation period in federal habeas proceedings may be equitably tolled on
grounds besides those specified in the habeas statutes when a petitioner untimely files

“because of extraordinary circumstances that are both beyond his control and unavoidable
with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). 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.” Holland v. Florida, 560 U.S. 631, 649 (2010). The diligence

required is reasonable diligence, not “maximum feasible diligence,” id. at 653, and the
extraordinary circumstance prong requires a causal connection between the circumstance
and the late filing. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
“[E]quitable tolling is an extraordinary remedy, . . . limited to rare and exceptional
circumstances and typically applied sparingly.” Hunter v. Ferrell, 587 F.3d 1304, 1308
(11th Cir. 2009). “The petitioner bears the burden of showing that equitable tolling is

warranted.” Id.
Horton appears to argue that the untimely filing of his § 2254 petition should be
excused based on principles of equitable tolling because, he says, he had insufficient
knowledge of the law regarding the filing of habeas petitions. Doc. 1 at 13. However, lack
of legal training or a general ignorance or confusion regarding the law is not an
extraordinary circumstance warranting equitable tolling. Rivers v. United States, 416 F.3d

1319, 1323 (11th Cir. 2005); Felder v. Johnson, 204 F.3d 168, 171–73 (5th Cir. 2000);
Perez v. Florida, 519 F. App’x 995, 997 (11th Cir. 2013).
Horton also seems to argue he is entitled to equitable tolling because his counsel on
direct appeal effectively “abandoned” him by filing a no-merit Anders brief4 with the
Alabama Court of Criminal Appeals.5 Doc. 13 at 1, 8. Horton’s argument fails because he

points to no causal connection between his appellate counsel’s filing of an Anders brief
and his own filing of a § 2254 after expiration of the AEDPA limitation period. As
indicated above, the “extraordinary circumstance” prong of equitable tolling requires a

4 Anders v. California, 386 U.S. 738, 744 (1967).

5 In Maples v. Thomas, 565 U.S. 266, 283–84 (2012), the U.S. Supreme Court recognized attorney
abandonment as “cause” to excuse a procedural default in a habeas proceeding. Following Maples, the
courts have recognized that attorney abandonment may constitute an “extraordinary circumstance” that,
when coupled with a showing of diligence, may warrant equitable tolling of AEDPA’s statute of limitations.
See, e.g., Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1228 (11th Cir. 2017).
causal connection between the alleged extraordinary circumstance and the late filing. San
Martin, 633 F.3d at 1267.

Because Horton fails to establish that extraordinary circumstances prevented him
from filing a timely § 2254 petition, he is not entitled to equitable tolling of the limitation
period. Therefore, his § 2254 petition is time-barred and his claims for relief are subject to
no further review. See 28 U.S.C. § 2244(d)(1)(A).
III. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that Horton’s

28 U.S.C. § 2254 petition and amendment be DENIED as time-barred and that this case be
DISMISSED with prejudice, because the petition and amendment were filed after
expiration of the one-year limitation period in 28 U.S.C. § 2244(d).
It is further ORDERED that the parties shall file any objections to this
Recommendation by October 12, 2021. A party must specifically identify the factual

findings and legal conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be considered. Failure to file written
objections to the Magistrate Judge’s findings and recommendations under 28 U.S.C.
§ 636(b)(1) shall bar a party from a de novo determination by the District Court of legal
and factual issues covered in the Recommendation and waives the right of the party to

challenge on appeal the District Court’s order based on unobjected-to factual and legal
conclusions accepted or adopted by the District Court except upon grounds of plain error
or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R.
3-1. See Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v.
City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

DONE this 27th day of September, 2021.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987461. Public record. Not legal advice.