# Davis v. Gordy (INMATE 3)

> District Court, M.D. Alabama · October 15, 2021

URL: https://www.frixlaw.com/law-library/cases/9987517

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** October 15, 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
NORTHERN DIVISION

JAMES HENRY DAVIS, # 267569, )
)
Petitioner, )
) CASE NO. 2:19-cv-46-WHA-JTA
v. ) (WO)
)
CHRISTOPHER GORDY, et al., )
)
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 January 14, 2019, by James Henry Davis, an Alabama inmate proceeding pro se. Doc.
1.1 Davis challenges his 2009 Pike County convictions for two counts of first-degree
robbery, for which he was sentenced to life in prison without parole. For the following
reasons, the undersigned Magistrate Judge RECOMMENDS that Davis’s petition be
DENIED without an evidentiary hearing and that this case be DISMISSED with prejudice.
I. BACKGROUND
A. State Criminal Conviction
On August 28, 2009, a Pike County jury found Davis guilty of two counts of first-
degree robbery, violations of ALA. CODE § 13A-8-41(a)(1). Doc. 11-1 at 229–31; Doc.
11-3 at 298–99. On that same date, the trial court sentenced Davis, as a habitual offender,

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. 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.
to concurrent terms of life imprisonment without the possibility of parole. Doc. 11-3 at
313–14.

Davis appealed, arguing that the trial court erred in denying his request for funds to
hire an expert in eyewitness identification. Doc. 11-4. On May 14, 2010, the Alabama
Court of Criminal Appeals affirmed Davis’s convictions and sentence by memorandum
opinion. Doc. 11-6. Davis’s application for rehearing was overruled on June 4, 2010. Doc.
11-23 at 3. Davis did not petition the Alabama Supreme Court for certiorari review. The
Alabama Court of Criminal Appeals issued a certificate of judgment on June 23, 2010.

Doc. 11-7.
B. State Post-Conviction Proceedings
On May 10, 2011, Davis filed a petition in the state trial court seeking post-
conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. Doc. 11-8 at
20. Davis amended his Rule 32 petition several times. In his petition, he raised claims of

actual innocence, double jeopardy, an improperly amended indictment, an unsworn petit
jury, an unlawfully enhanced sentence, denial of counsel, and ineffective assistance of trial
and appellate counsel. Doc. 11-8 at 13–68, 71–104. After appointing counsel to represent
Davis (Doc. 11-8 at 118), the trial court held an evidentiary hearing on Davis’s Rule 32
petition in March 2014 (Doc. 11-8 at 140–226). On April 8, 2014, the trial court entered

an order denying Davis’s Rule 32 petition. Doc. 11-8 at 124-26.
Davis appealed, pursuing a claim in his Rule 32 petition that his trial counsel was
ineffective for failing to conduct adequate pretrial investigation and for failing to subpoena
alibi witnesses to testify at his trial. Doc. 11-9. On January 30, 2015, the Alabama Court
of Criminal Appeals issued a memorandum opinion affirming the trial court’s judgment
denying Davis’s Rule 32 petition. Doc. 11-12. Davis’s application for rehearing was

overruled, and he filed a petition for writ of certiorari with the Alabama Supreme Court
(Doc. 11-13). On June 12, 2015, the Alabama Supreme Court denied his petition for
certiorari (Doc. 11-14), and a certificate of judgment issued on that date (Docs. 11-14, 11-
15).
In May 2017, Davis filed a second Alabama Rule 32 petition in which he presented
a claim that his counsel in his first Rule 32 proceeding was ineffective for failing to

subpoena alibi witnesses to testify at the evidentiary hearing on the Rule 32 petition. Doc.
11-16 at 30. On September 6, 2017, the trial court entered an order denying Davis’s second
Rule 32 petition. Doc. 11-16 at 42. Davis appealed, and on April 20, 2018, the Alabama
Court of Criminal Appeals issued a memorandum opinion affirming the trial court’s denial
of Davis’s second Rule 32 petition. Doc. 11-19. Davis’s application for rehearing was

overruled, and he filed a petition for writ of certiorari with the Alabama Supreme Court
(Doc. 11-20). On July 13, 2018, the Alabama Supreme Court denied his petition for
certiorari (Doc. 11-21), and a certificate of judgment issued on that date (Docs. 11-21, 11-
22).
C. Federal Habeas Petition

Davis filed this § 2254 petition on January 14, 2019. Doc. 1. In his petition, Davis
claims he received ineffective assistance of trial counsel and that his court-appointed
lawyer in his first Rule 32 proceeding rendered ineffective assistance of counsel by failing
to subpoena alibi witnesses to testify at the evidentiary hearing. Respondents answer that
Davis’s § 2254 petition is time-barred under AEDPA’s one-year limitation period. Doc.
11. The Court finds Respondents’ statute-of-limitations argument to be well taken.2

II. DISCUSSION
A. AEDPA’s Statute of Limitations
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 In addition to their statute-of-limitations argument, Respondents assert various other grounds for denying
Davis’s § 2254 petition. Because the statute of limitations is dispositive here, the Court pretermits full
discussion of the other asserted grounds for denying Davis’s petition. However, the Court agrees with
Respondents (Doc. 11 at 15–16) that Davis’s claim that his court-appointed lawyer in his first Rule 32
proceeding rendered ineffective assistance of counsel is not a valid ground for federal habeas relief. See
Chavez v. Sec’y Dep’t of Corr, 742 F.3d 940, 944–45 (11th Cir. 2014).
(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).
B. Analysis of Timeliness
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, 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. Rule 13.1,
Rules of U.S. Supreme Court; 28 U.S.C. § 1257(a).
During the direct-review stage of his case, Davis 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 June 23,
2010—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, Davis had until June 23, 2011, to file his
§ 2254 petition. As discussed below, statutory tolling under 28 U.S.C. § 2244(d)(2)
extended the AEDPA deadline beyond that date, but Davis still filed his petition after

AEDPA’s statute of limitations expired.
1. 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. See 28 U.S.C. § 2244(d)(2) (stating 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”); see also Tinker v. Moore, 255 F.3d 1331, 1335 n.4 (11th
Cir. 2001). On May 10, 2011, Davis filed his first Rule 32 petition in the state trial court.
Under § 2244(d)(2), that filing tolled AEDPA’s limitation period. At that time, the one-
year limitation period for filing a § 2254 petition had run for 322 days (i.e., from June 23,

2010 to May 10, 2011). The Rule 32 proceedings concluded on June 12, 2015—when the
Alabama Supreme Court issued a certificate of judgment in the proceedings—starting
AEDPA’s clock running again. On June 12, 2015, Davis had 43 days (i.e., 365 - 322)
remaining to file a timely § 2254 petition. The record shows that the AEDPA limitation
period ran unabated without a tolling event for those 43 days, expiring on July 27, 2015—

the first business day after July 25, 2015.3

3 The remaining 43 days for Davis to file his § 2254 petition ran to July 25, 2015—but that date fell on a
Saturday, when the courthouse was not open.
Davis filed a second Rule 32 petition in May 2017. But that filing had no tolling
effect under § 2244(d)(2), because, the AEDPA limitation period had expired on July 27,

2015. A Rule 32 petition filed after expiration of AEDPA’s limitation period does not toll
the federal statute under§ 2244(d)(2), 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.

The provisions of 28 U.S.C. § 2244(d)(1)(B) through (D) provide no safe harbor for
Davis by affording him a different triggering date so that AEDPA’s limitation period
commenced on some date later than June 23, 2011, or expired (with statutory tolling under
§ 2244(d)(2)) on some date later than July 27, 2015. There is no evidence that an unlawful
state action impeded Davis from filing a timely § 2254 petition, see 28 U.S.C. §
2244(d)(1)(B), and Davis submits no ground for relief with a factual predicate not

discoverable earlier with due diligence. See 28 U.S.C. § 2244(d)(1)(D). Davis also 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 28 U.S.C.
§ 2244(d)(1)(C).
The controlling limitation period for Davis’s § 2254 petition is the one in 28 U.S.C.

§ 2244(d)(1)(A). Under that provision, the AEDPA’s statute of limitations expired on July
27, 2015. Davis filed his § 2254 petition on January 14, 2019—over 42 months after the
limitation period expired. Therefore, his petition is untimely.
2. Equitable Tolling
The limitation period may be equitably tolled on grounds besides those specified in

the habeas statutes “when a movant 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 petitioner bears the burden of showing that equitable tolling is

warranted.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). Here, Davis offers
the Court no basis for applying equitable tolling.4 Thus, his § 2254 petition is time-barred
by AEDPA’s statute of limitations.
3. Actual Innocence
The AEDPA statute of limitations can be overcome by a credible showing of actual

innocence. McQuiggin v. Perkins, 569 U.S. 383, 393–94 (2013). Habeas petitioners
asserting actual innocence as a gateway to review of defaulted or time-barred claims must
establish that, in light of new evidence, “it is more likely than not that no reasonable juror
would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S.
298, 327 (1995). In Schlup, the Supreme Court stated:

[A] substantial claim that constitutional error has caused the conviction of an
innocent person is extremely rare. . . . To be credible, such a claim requires
petitioner to support his allegations of constitutional error with new reliable

4 To the extent, if any, Davis attempts to rely on Martinez v. Ryan, 566 U.S. 1 (2012), as a basis for equitable
tolling, such an argument is unavailing. Arthur v. Thomas, 739 F.3d 611, 630–31 (11th Cir. 2014); Chavez
v. Sec’y Dep’t of Corr, 742 F.3d 940, 946 (11th Cir. 2014).
evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at
trial. Because such evidence is obviously unavailable in the vast majority of
cases, claims of actual innocence are rarely successful.

513 U.S. at 324. Here, Davis offers no argument for his actual innocence. Because the
actual-innocence exception does not apply in Davis’s case, the claims in his time-barred §
2254 petition are not subject to federal habeas review.
III. CONCLUSION
The undersigned Magistrate Judge RECOMMENDS that Davis’s § 2254 petition
be DENIED without an evidentiary hearing and that this case be DISMISSED with
prejudice.
Additionally, it is ORDERED that the parties shall file any objections to this
Recommendation by November 1, 2021. A party must specifically identify the factual
findings and legal conclusions in the Recommendation to which each 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 also Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982); Bonner v. City

of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
DONE this 15th day of October, 2021.

ZRYUSHA T. ADAMS
IMITED STATES MAGISTRATE JUDGE

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987517. Public record. Not legal advice.