Falconer v. Estes

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

COREY LAMAR FALCONER, )

)

Petitioner, )

)

v. ) Case No.: 5:19-cv-00664-LSC-JHE

)

DEWAYNE ESTES, Warden, et al., )

)

Respondents. )

MEMORANDUM OPINION

This is an action for a writ of habeas corpus action filed by petitioner Corey

Lamar Falconer (“Falconer”), pro se, on or about April 26, 2019. (Doc. 1; doc. 17

at 2 n.3). The petitioner challenges his 2016 conviction in Madison County Circuit

Court for second degree assault. (Id. at 2). On December 9, 2019, the magistrate

judge to whom the case was referred entered a report and recommendation pursuant

to 28 U.S.C. § 636(b), that the petitioner’s habeas claims be dismissed as time-

barred. (Doc. 17). Falconer filed timely objections. (Doc. 20).

In his objections, Falconer claims the magistrate judge erred by rendering

moot his demand for an Article III judge to hear all proceedings. (Doc. 20 at 2).

However, as explained to Falconer, the procedure utilized by this court is authorized

by 28 U.S.C. § 636(b). (See doc. 5 at 1 n.1). Falconer’s argument that federal

magistrate judges are somehow under the domination and control of Alabama state

officials or the Alabama Supreme Court (doc. 20 at 2-6) lacks merit and any basis in

law or fact. The United States Supreme Court has authorized the very process

utilized by this court, and courts nationally. Thomas v. Arn, 474 U.S. 140, 153

(1985) (“Although a magistrate is not an Article III judge … a district court may

refer dispositive motions to a magistrate for a recommendation so long as ‘the entire

process takes place under the district court’s total control and jurisdiction, and the

judge exercise[s] the ultimate authority to issue an appropriate order.”) (internal

citations and quotation marks omitted).

As explained to Falconer in the “Notice of Right to Object” (doc. 17 at 9), a

district court may “accept, reject, or modify” a magistrate judge’s report and

recommendation. See 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de

novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. The district court finds nothing

improper about the magistrate judge’s issuance of a report and recommendation, nor

does the court need Falconer’s consent to utilize this procedure.

Falconer next challenges the finding that this petition is time-barred. (Doc.

20 at 6). He correctly asserts that his June 29, 2018, state court petition for collateral

review paused the one year limitations period found in 28 U.S.C. § 2244(d) with 27

days remaining.1 (Id., at 7). However, Falconer challenges the finding that his one

year time-limit again began to run when the state court judge denied his application

to proceed in forma pauperis on July 17, 2018. (Id.). In essence, Falconer simply

claims the state court judge’s ruling was wrong, and thus his one-year limitations

period, tolled on June 29, 2018, should have remained tolled until he filed the

petition in this court on April 26, 2019. (Id., at 7-8). No basis in law for such a

holding exists. Falconer’s one year limitation period expired on August 10, 2018.

At that point, he did not have a properly filed state court petition pending. Falconer’s

untimely September 7, 2018 Rule 32 petition could not revive the expired deadline.

See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (“The statutory tolling

provision does not encompass a period of time in which a state prisoner does not

have a ‘properly filed’ post-conviction application actually pending in state court.”).

However, providing Falconer the benefit of the doubt, the magistrate judge

further considered the effect of equitable tolling---if the petition for writ of

mandamus filed with the Alabama Supreme Court on October 17, 2018, could be

1 Falconer asserts under Hyde v. State, 950 So.2d 344 (Ala.Crim.App. 2006), his Rule 32 petition,

accompanied by a motion to proceed in forma pauperis, was “properly filed.” (Doc. 20 at 9). This

is a correct statement of law. See id., at 353. However, Falconer fails to recognize that when the

state court judge denied the request to proceed in forma pauperis, he no longer had a properly file

petition pending. See e.g., Bledsoe v. Jones, 2019 WL 6712130, *3 (N.D.Ala. Nov. 12, 2019)

(recognizing authority for the holding that a Rule 32 petition accompanied by an in forma pauperis

request is considered “properly filed” while the request is pending, even if it is ultimately denied).

considered a tolling motion.2 (Doc. 17 at 7-8 and n. 8). The problem for Falconer

is that even if a state court petition for a writ of mandamus could stop the running of

the one year time limitation under 28 U.S.C. § 2244(d), that tolling could only last

until the Alabama Supreme Court dismissed the mandamus petition on February 27,

2019. Under this hypothetical scenario, the 27 remaining days again begin to run,

and expired on March 26, 2019, again failing to salvage the instant petition.

The petitioner novely claims that the state court judge’s denial of his motion

to proceed in forma pauperis on July 17, 2018, was unconstitutional, and thus an

“impediment to filing” which statutorily tolled the time remaining on his one year

limitation through the date of filing his petition here. (Doc. 20 at 9-10 (citing 28

U.S.C. § 2244(d)(1)(B))). Pursuant to 28 U.S.C. § 2244(d)(1)(B), the statute begins

to run on “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.” However, a state court’s

dismissal of a Rule 32 petition based on the denial of a motion to proceed in forma

pauperis neither violates federal law nor impedes a petitioner’s ability to file a

2 No authority for such a proposition exists in this circuit. See, e.g., Phillips v. Culliver, 2009 WL

3414280, *4 (S.D. Ala. Oct. 16, 2009) (holding petitions for writ of mandamus in the Alabama

Court of Criminal Appeals and the Alabama Supreme Court that challenged the denial of an

application to proceed in forma pauperis and were ultimately denied “had no tolling effect”);

Moore v. Dretke, 2006 WL 297758, *2 (N.D. Tex. Jan. 12, 2006) (“A petition for writ of

mandamus does not toll the limitations period.”) (citing Moore v. Cain, 298 F.3d 361, 367 (5th

Cir. 2002)).

federal habeas petition under 28 U.S.C. § 2254. See e.g., Kraft v. Stewart, 2018 WL

8918477, *2 (11th Cir. No. 28, 2018).

Even assuming the state court judge’s denial of Falconer’s motion to proceed

in forma pauperis could fall within the realm of “unconstitutional,” nothing in that

ruling prevented the filing of a federal habeas petition.3 Thus, Falconer’s reliance

on Brown v. Sec’y, Dept. of Corrs., 750 F.App’x 915 (11th Cir. 2018) (holding §

2244(d)(1)(D) satisfied where state’s belatedly disclosed the fact an eyewitness lied

under oath), is misplaced. Nor does Knight v. Schofield, 292 F.3d 709 (11th Cir.

2002) (holding § 2244(d)(1)(D) satisfied where petitioner missed filing deadline

because court failed to notify him of issuance of decision, after assurance it would

do so), assist Falconer.

Having carefully reviewed and considered de novo all the materials in the

court file, including the petitioner’s objections and the magistrate judge’s Report and

Recommendation, the court is of the opinion that the objections are due to be

OVERRULED. The magistrate judge’s findings are due to be and are hereby

ADOPTED and his recommendation is ACCEPTED. Accordingly, the petition for

writ of habeas corpus is due to be DENIED. Further, because the petition does not

present issues that are debatable among jurists of reason, a certificate of appealability

3 Falconer’s claims as of July 17, 2018, were no more and no less exhausted than they were when

he filed the instant petition on April 26, 2019.

is also due to be DENIED. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S.

473, 484-85 (2000); Rule 11(a), Rules Governing § 2254 Proceedings.

A separate Final Order will be entered.

DONE AnD ORDERED ON JANUARY 28, 2020.

L. SCOTT Ce

UNITED STATES DIS¥RICT JUDGE

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