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Case 6:12-cv-02090-AKK-TMP Document 23 Filed 07/30/13 Page 1 of 2

FILED

2013 Jul-30 PM 01:35
U.S. DISTRICT COURT
N.D. OF ALABAMA



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID MARTIN CAMPBELL,

Petitioner ,



v.

LOUIS BOYD, Warden, and
THE ATTORNEY GENERAL
OF THE STATE OF ALABAMA

Respondents.

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MEMORANDUM OPINION

The magistrate judge filed a report on April 26, 2013, recommending that

the court dismiss David Martin Campbell’s 28 U.S.C. § 2254 petition as time

barred by the applicable statute of limitations. Doc. 21. Campbell does not refute

that he filed this petition more than a year after his underlying conviction became

final, but objects to the magistrate judge’s recommendation based on his conten-

tion that claims of actual innocence and an illegal sentence are not subject to the

limitations period set forth in the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2244(d). See doc. 22. Although the limitations

period does apply to Campbell’s “illegal sentence” claim, “the Eleventh Circuit

has not yet decided ‘whether a showing of actual innocence is an exception to the

Case 6:12-cv-02090-AKK-TMP Document 23 Filed 07/30/13 Page 2 of 2

one-year statute of limitations in AEDPA[.]’” Charest v. Mitchem, No. CA 10-

0067-CG-C, 2013 WL 1499535, at *28 (S.D. Ala. March 8, 2013) (quoting Ray v.

Mitchem, 272 F. App’x 807, 810 n.2 (11th Cir.), cert. denied, 555 U.S. 898 (2008).

Instead, “it has guided courts to make the actual innocence inquiry as opposed to

‘addressing the difficult constitutional question of whether the limitations period

constitutes a violation of the Suspension Clause if the petitioner can show actual

innocence[.]’” Id.(quoting Ray, 272 F. App’x at 810 n.2).

In this instance, however, the record fails to support the petitioner’s claim of

actual innocence. Accordingly, after carefully reviewing and considering de novo

all the materials in the court file, including the report and recommendation, the

Court is of the opinion that the magistrate judge’s report is due to be and hereby is

ADOPTED and his recommendation is ACCEPTED. It is therefore ORDERED

that petitioner’s 28 U.S.C. § 2254 petition for writ of habeas corpus is DENIED

and DISMISSED with prejudice.

DONE the 30th day of July, 2013.

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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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