The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
TERRY JAMES BUCHANON II, )
# 224845, )
)
Petitioner, )
) Civil Action No.
v. ) 3:21-cv-737-CSC
) (WO)
ALABAMA BUREAU OF PARDONS )
AND PAROLES, et al., )
)
Respondents. )
MEMORANDUM OPINION AND ORDER
Before the Court1 is Alabama prisoner Terry James Buchanon II’s petition for writ
of habeas corpus under 28 U.S.C. § 2254 by which Buchanon challenges the July 2018
decision of the Alabama Board of Pardons and Paroles (“Board”) revoking his parole.
(Doc. 1.) For the reasons discussed below, Buchanon’s petition shall be dismissed as
untimely under the federal statute of limitations, 28 U.S.C. § 2244(d)(1)(D).
I. BACKGROUND
A. Conviction, Sentence, and Parole
In August 2002, Buchanon was convicted of robbery in the first degree in the Lee
County Circuit Court. (Doc. 14-1 at 1.) He received a 21-year prison sentence, but was
granted parole in March 2014. (Id.)
1 The parties have consented to have the Magistrate Judge conduct all proceedings in this case, including
the entry of final judgment and all post-judgment proceedings, in accordance with 28 U.S.C. § 636(c) and
Fed. R. Civ. P. 73. (Doc. 27.)
B. Parole Revocation
1. Parole Violation and Revocation Proceedings
In May 2017, Buchanon was arrested in Lee County on charges of theft of property
in the second degree.2 (Doc. 14-1 at 2.) As a consequence, Buchanon’s parole officer filed
a parole-violation report alleging that he violated the conditions of his parole by
committing a new criminal offense. (Id. at 1–3.) A parole-revocation hearing was held on
July 17, 2018. (Doc. 14-2 at 2–4.) At the hearing, Buchanon pled guilty to violating parole
by committing a new offense. (Id. at 3.) Based on Buchanon’s admission of guilt and
allocution to the offense, the hearing officer found Buchanon guilty of violating the
conditions of his parole and recommended that his parole be revoked. (Id. at 5.) On July
25, 2018, after considering the evidence presented at the revocation hearing and the
findings and recommendation of the hearing officer, the Board revoked Buchanon’s parole.
(Doc. 14-4.)
2. Petition for Common Law Writ of Certiorari
On June 11, 2019, Buchanon, proceeding pro se at the time, filed a petition for a
common law writ of certiorari in the Circuit Court of Montgomery County challenging the
Board’s July 25, 2018 decision revoking his parole.3 (Doc. 14-3 at 6–7.) In his petition,
2 Buchanon was later convicted of that offense. (Doc. 14-3 at 29.)
3 The pro se petition for common law writ of certiorari was date-stamped as filed in the circuit court on July
29, 2019. (Doc. 14-3 at 1.) However, Buchanon averred that he signed the petition (presumptively for
mailing from prison) on June 11, 2019. (Id. at 4.) Under the “prison mailbox rule,” a pro se petition is
deemed filed on the date it is delivered to prison officials for mailing. See Adams v. United States, 173 F.3d
1339, 1340–41 (11th Cir. 1999). Although the Court is presented with no explanation for the 6-week
discrepancy in the mailing and filing dates of Buchanon’s petition, the prison mailbox rule applies for the
operative filing date.
Buchanon argued that his revocation hearing was unlawful because it was not timely held.
(Id.) Over a year later, on July 21, 2020, Buchanon, through counsel, filed an amended
petition reasserting Buchanon’s pro se argument and also arguing that the revocation of
Buchanon’s parole violated his rights to due process and to be free from cruel and unusual
punishment. (Id. at 15–20.) In August 2020, the Board moved to dismiss Buchanon’s
petition as amended. (Id. at 96–99.) On September 8, 2020, the circuit court entered an
order denying Buchanon’s petition and granting the Board’s motion to dismiss. (Id. at 114.)
Buchanon, through counsel, appealed. (Doc. 14-3 at 127–28.) The Alabama Court
of Criminal Appeals docketed the appeal on November 5, 2020, and gave notice that the
Appellant’s brief was due on December 2, 2020. (Doc. 14-5.) On November 30, 2020, the
Alabama Court of Criminal Appeals extended the deadline to file an Appellant’s brief to
December 9, 2020. (Doc. 14-6.) On December 3, 2020, during the pendency of the appeal,
Buchanon’s counsel filed a motion to withdraw as counsel. (Doc. 14-7.) On December 4,
2020, the Alabama Court of Criminal Appeals granted the motion to withdraw. (Doc. 14-
8.) On December 10, 2020, the Alabama Court of Criminal Appeals entered an order
extending the date for Buchanon to file a pro se Appellant’s brief to January 5, 2021. (Doc.
14-9.) Buchanon did not file a brief by that date. On January 22, 2021, the Alabama Court
of Criminal Appeals gave Buchanon notice that his appeal would be dismissed if he did
not file his brief by February 5, 2021. (Doc. 14-10.) Buchanon still failed to file a brief,
and on February 12, 2021, the Alabama Court of Criminal Appeals dismissed his appeal
based on his failure to file a brief and issued a certificate of judgment. (Docs. 14-11 & 14-
12.) Buchanon filed no application for rehearing.
On June 10, 2021, nearly 5 months after the dismissal of his appeal, Buchanon,
proceeding pro se, filed a second petition for common law writ of certiorari in the Circuit
Court of Montgomery County challenging the Board’s revocation of his parole. (Doc. 14-
13.) Buchanon amended that petition on August 24, 2021. (Doc. 14-14.) On December 17,
2021, the circuit court entered an order denying Buchanon’s petition and granting the
Board’s motion to dismiss. (Doc. 14-16.) Buchanon did not appeal.
C. § 2254 Petition for Writ of Habeas Corpus
On October 10, 2021, Buchanon filed this pro se § 2254 petition4 asserting that the
Board’s July 2018 decision revoking his parole violated his right to due process and
constituted cruel and unusual punishment.5 (Doc. 1 at 2–4.) Respondents argue that
Buchanon’s petition is time-barred by the one-year federal statute of limitations. (Doc. 14
at 7–9; Doc. 26.)
II. DISCUSSION
Title 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) provides the statute of limitations for federal habeas petitions and 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—
4 Buchanon’s petition was date-stamped as received by the Court on November 1, 2021. (Doc. 1 at 1.) He
avers that he signed the petition on October 10, 2021. (Id. at 4.)
5 Buchanon’s pleading was on a form used for civil actions under 42 U.S.C. § 1983. (Doc. 1.) Because he
sought immediate release from prison, the pleading was construed as a 28 U.S.C § 2254 petition for writ of
habeas corpus. (Docs. 3 & 7.) Buchanon was nonresponsive to the Court’s order informing him of the
recharacterization of his pleading and advising him of his rights under Castro v. United States, 540 U.S.
375 (2003). (Doc. 7.)
(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).
Here, Buchanon presents claims challenging the Board’s decision of July 25, 2018,
revoking his parole. Under Brown v. Barrow, 512 F.3d 1304 (11th Cir. 2008), the one-year
limitations period for Buchanon to apply for federal habeas relief from the Board’s decision
runs from July 25, 2018—i.e., “the date on which the factual predicate of the claim or
claims presented [by Buchanon] could have been discovered through the exercise of due
diligence.” 28 U.S.C. § 2244(d)(1)(D); see Brown, 512 F.3d at 1307 n.1 (“We join our
sister circuits in deciding that subsection D, and not subsection A, applies in this
circumstance.”); Hawes v. Howerton, 335 F. App’x 882, 884 (11th Cir. 2009); Cameron v.
Stewart, 2018 WL 732387, at *2 (M.D. Ala. Jan. 2, 2018). Therefore, absent a statutory or
equitable tolling event, Buchanon had until July 25, 2019, to file a § 2254 petition
challenging the Board’s decision.
In Alabama, there is no direct appeal procedure for an inmate to challenge decisions
of the Alabama Board of Pardons and Paroles. See Ray v. Mitchem, 272 F. App’x 807, 809
(11th Cir. 2008). Instead, a petition for common law writ of certiorari filed in the Circuit
Court of Montgomery County is the proper method to challenge decisions of the Board.
Samuels v. Alabama Bd. of Pardons & Paroles, 687 So.2d 1287, 1288 (Ala. Crim. App.
1996); Ellard v. State, 474 So.2d 743 (Ala. Crim. App. 1984), aff’d, 474 So.2d 758 (Ala.
1985). Under 28 U.S.C. § 2244(d)(2), the time during which a properly filed application
for state post-conviction or other collateral review is pending is not counted toward the
one-year federal limitation period for filing a § 2254 petition. Consequently, a properly
filed petition for common law writ of certiorari—i.e., a “properly filed application for State
post-conviction or other collateral review”—in the Circuit Court of Montgomery County
activates tolling under § 2244(d)(2).
Buchanon filed his first petition for common law writ of certiorari in the Circuit
Court of Montgomery County on June 11, 2019, tolling the federal limitation period per
§ 2244(d)(2). On that date, the statute of limitations had run for 321 days (i.e., from July
25, 2018 to June 11, 2019), leaving 44 days on the federal clock. On February 12, 2021,
the Alabama Court of Criminal Appeals dismissed Buchanon’s appeal from the circuit
court’s decision based on his failure to file an appellate brief. Doc. 14-11. Buchanon filed
no application for rehearing. A timely application for rehearing in the Alabama Court of
Criminal Appeals is a prerequisite to review in the Alabama Supreme Court. Ala. R. App.
P. 39(c)(1); 40(d)(1). Accordingly, the state court proceedings related to Buchanon’s
petition for common law writ of certiorari concluded on the date his time for applying for
rehearing expired. Kister v. Jones, 2021 WL 5411213, at *3 (N.D. Ala. Oct. 26, 2021);
Harvey v. Price, 2018 WL 2731232, at *2 (N.D. Ala. Apr. 26, 2018). That date was 14
days after the February 12, 2021 dismissal of his appeal, i.e., February 26, 2021. Ala. R.
App. P. 40(c).
Thus, the AEDPA statute of limitations began to run again on February 26, 2021.
After that, the limitations period ran unabated without a tolling event for the remaining 44
days, before expiring on April 12, 2021 (the first business day after Sunday, April 11,
2021).
As indicated above, Buchanon filed a second petition for common law writ of
certiorari in the Circuit Court of Montgomery County on June 10, 2021. However, that
petition and any related proceedings that followed were of no consequence for purposes of
tolling under § 2244(d)(2) because, as noted, the AEDPA statute of limitations had expired
on April 12, 2021. “[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.; see also Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001).
Buchanon sets forth no facts or arguments to establish a tolling event under 28
U.S.C. § 2244(d)(1)(B) or (C); i.e., he has not shown that an unlawful state action impeded
him from filing a timely § 2254 petition or that his claims are based on a right newly
recognized by the United States Supreme Court and made retroactively applicable to cases
on collateral review. Because § 2244(d)(1)(D) provides the statute of limitations in
Buchanon’s case, Buchanon had to file his § 2254 petition by April 12, 2021. However, he
did not file his petition until October 10, 2021—over 5 months after the AEDPA statute of
limitations expired.
The limitation period may be equitably tolled on grounds besides those specified in
the habeas statute “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). See also Rich v. Dep’t of Corr. State of Fla., 317 F.
App’x 881, 882 (11th Cir. 2008). The Supreme Court has held 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.”
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). Buchanon makes no argument, and brings forth no evidence, demonstrating that he
is entitled to equitable tolling, and the Court knows of no reason that would support tolling
of the limitation period in Buchanon’s case.6 Buchanon’s § 2254 petition is therefore time-
barred under the AEDPA, and his claims are not subject to federal habeas review.7
6 The Court entered orders (Docs. 15 & 28) affording Buchanon the opportunity to respond to Respondents’
answer arguing that his petition is time-barred, but Buchanon has filed no response.
7 Respondents also correctly argue that Buchanon’s claims are unexhausted and procedurally defaulted.
(Doc. 14 at 9–11.) “[S]tate 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,”
including review by the state's court of last resort, even if review in that court is discretionary. O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); see Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003). Under
Alabama law, a complete round of appellate review of an adverse ruling on a petition for a common law
III. CONCLUSION
For these reasons, it is ORDERED that the petition for writ of habeas corpus filed
by Buchanon be DENIED as untimely under 28 U.S.C. § 2244(d)(1)(D) and that this case
be DISMISSED with prejudice.
A separate final judgment will be entered in accordance with this Memorandum
Opinion and Order
DONE this 1st day of November, 2022.
/s/ Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
writ of certiorari is by: (1) appealing the denial of the petition to the Alabama Court of Criminal Appeals,
see ALA. CODE § 12-3-9; then (2) petitioning the Alabama Court of Criminal Appeals for rehearing, see
Ala. R. App. P. 39(c)(1); and then (3) seeking discretionary review in the Alabama Supreme Court, see Ala.
R. App. P. 39(c). Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004). Buchanon did not apply for rehearing
after the Alabama Court of Criminal Appeals’ dismissed his appeal from the denial of his petition for
common law writ of certiorari, nor did he seek further review in the Alabama Supreme Court. He fails to
establish cause to excuse his procedural default, and he presents no colorable claim of actual innocence to
provide a gateway to habeas review of his unexhausted and defaulted claims.