HICKS v. DIXON

Filing 19

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION - The report and recommendation, ECF No. 16 , is accepted and adopted as this Court's opinion. Respondent's motion to dismiss, ECF No. 10 , is GRANTED. The Clerk shall enter judgment stating, "Petitioner Hicks § 2254 petition, ECF No. 1 , is DISMISSED as untimely." A certificate of appealability is DENIED. Further, leave to appeal in forma pauperis is DENIED. The Clerk shall close the file. Signed by CHIEF JUDGE MARK E WALKER on 1/7/2025. (baf)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
SCOTT HICKS,
Petitioner,
v.

Case No.: 5:24cv68-MW/MAF

RICKY DIXON, Secretary,
Florida Department of Corrections,
Respondent.
___________________________/
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
This Court has considered, without hearing, the Magistrate Judge's Report and
Recommendation. ECF No. 16. On December 16, 2024, Petitioner filed a motion for
extension of time to file objections. ECF No. 17. This Court granted the motion and
set Petitioner’s deadline to file objections as December 27, 2024. ECF No. 18. That
deadline expired ten days ago, and Petitioner has not filed objections. Accordingly,
the report and recommendation is ripe for review.
The Magistrate Judge recommends dismissal of the § 2254 petition because
the petition is untimely and equitable tolling does not apply. This Court agrees with
the following additional comments regarding equitable tolling. The Magistrate
Judge asserts that equitable tolling ought not to apply because Petitioner’s attorneys’
asserted negligence does not warrant tolling of the deadline to file the § 2254

petition. This Court agrees and notes that even if the deadline expired while
Petitioner was unrepresented but diligently searching for new counsel to represent
him in his post-conviction proceedings, that search for counsel would also not
warrant equitable tolling. See, e.g., Minor v. Richie, No. 2:19-CV-373-MHT-KFP,
2022 WL 21794364, at *3 (M.D. Ala. Mar. 25, 2022), report and recommendation
adopted, No. 2:19CV373-MHT, 2022 WL 21794361 (M.D. Ala. Apr. 19, 2022)
(noting that petitioner’s mother’s failure to hire a lawyer to file a timely § 2254
petition did not demonstrate entitlement to equitable tolling, especially when
petitioner “without the aid of a lawyer . . . could have prepared and timely filed his
petition if he had acted with reasonable diligence” and that “pro se status is not an
‘extraordinary circumstance’ warranting equitable tolling”). Accordingly, upon
consideration, no objections having been filed by the parties,
IT IS ORDERED:
The report and recommendation, ECF No. 16, is accepted and adopted as
this Court’s opinion. Respondent’s motion to dismiss, ECF No. 10, is GRANTED.
The Clerk shall enter judgment stating, “Petitioner Hick’s § 2254 petition, ECF No.
1, is DISMISSED as untimely.” A certificate of appealability is DENIED. Further,
leave to appeal in forma pauperis is DENIED. The Clerk shall close the file.
SO ORDERED on January 7, 2025.
s/Mark E. Walker
____
Chief United States District Judge
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