United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court upon Magistrate Judge King's
Findings, Conclusions, and Recommendations
(“Recommendations”) (DN 19) issued on October 1,
2019. The Magistrate Judge recommends that the Court deny as
untimely Mr. Brooks's Petition and amendment to petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254
(DN 1; DN 11), deny Petitioner's motion to stay and hold
in abeyance (DN 13), and deny a certificate of appealability.
Mr. Brooks filed Objections (DN 25) to the Recommendations.
Upon review of the Recommendations, Objections, relevant law,
and being otherwise sufficiently advised, the Court HEREBY
ADOPTS the Magistrate's Recommendations (DN 19). The
reasoning expressed in the Recommendations is sound and the
Court adopts those Recommendations in full. This Opinion
merely addresses some of Mr. Brooks's Objections to those
Brooks's Petition is time barred. In relevant part, 28 U.S.C.
§ 2244(d)(1) provides:
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 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; . . . [or]
(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 . . .
altered). In a prior show-cause order (DN 16), Magistrate
Judge King explained that:
Petitioner pled guilty to murder and robbery; and, on
December 21, 1998, the McCracken Circuit Court entered its
judgment of conviction. . . . Petitioner did not appeal from
the judgement of conviction. . . . Kentucky Rules of Criminal
Procedure (RCr) 12.04(3) provides that a defendant has thirty
days from entry of a judgment of conviction to file a notice
of appeal. Accordingly, Petitioner's conviction became
final (and his 1-year period of limitation began to run) on
or about January 21, 1999. . . . Petitioner's 1-year
period of limitation expired on or about January 21, 2000.
Petitioner filed the present petition (Docket # 1) on or
about December 28, 2018 - - nearly nineteen (19) years late.
omitted). Thus, Petitioner's petition is untimely
pursuant to § 2244(d)(1)(A).
objects to this finding and argues that his case is analogous
to Jimenez v. Quarterman, 555 U.S. 113 (2009). (DN
25 at 6). Petitioner argues that the defendant in Jimenez
“was able to have his direct appeal reinstated long
after the trial courts judgment became final.”
Id. But the issue addressed in Jimenez is narrower
than Petitioner claims. The issue in Jimenez was whether the
date on which a judgment becomes final for purposes of 28
U.S.C. § 2244(d)(1) can be postponed by a state
court's decision during collateral review to grant a
defendant the right to file an out-of-time direct appeal. 55
U.S. at 115. In a unanimous decision, the Supreme Court held:
Our decision today is a narrow one. We hold that, where a
state court grants a criminal defendant the right to file an
out-of-time direct appeal during state collateral review, but
before the defendant has first sought federal habeas relief,
his judgment is not yet, “final” for purposes of
§ 2244(d)(1)(A). In such a case, “the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review” must reflect the conclusion of the out-of-time
direct appeal, or the expiration of the time for seeking
review of that appeal.
Id. at 121.
case, the state court has not granted Petitioner the right to
file an out-of-time direct appeal. Instead, Petitioner's
judgment became final pursuant to 28 U.S.C. § 2244(d)(1)
on January 21, 1999 when Petitioner's time to appeal his
conviction lapsed. Because Petitioner filed the Petition
before this Court on December 28, 2018, his Petitioner is
Brooks also objects to Magistrate Judge King's finding
that his Petition is time barred pursuant to §
2244(d)(1)(C). § 2244(d)(1)(C) sets the beginning of the
one-year period of limitations at “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.” Petitioner's claim is
premised upon three related Supreme Court cases: Graham
v. Florida, 560 U.S. 48 (2010); Miller v.
Alabama, 567 U.S. 460 (2012); and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). Judge King correctly
summarizes these three cases as follows:
Graham v. Florida held that the Eighth Amendment
bars juvenile offenders from being sentenced to life without
the possibility of parole (LWOP) for a non-homicide crime. .
. . Miller v. Alabama held that mandatory LWOP
sentences for juvenile homicide offenders violate the Eighth
Amendment. . . . Montgomery v. Louisiana held that Miller
applies retroactively on collateral review because it
announced a new substantive rule of constitutional law.
(DN 19 at 2-3) (citations omitted). Petitioner argues that
the limitations petition began on January 27, 2016, when
Montgomery announced that Miller applies retroactively. As
Judge King correctly identifies, however, the limitations
period begins to run when the constitutional right is first
recognized and not when the right is announced to be