Mitchell v. Terry

Filing 26

ORDER ADOPTING 21 Report and Recommendations and GRANTING 13 Motion to Dismiss. Ordered by Judge Marc Thomas Treadwell on 9/6/2011. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
STEVEN G. MITCHELL,
Petitioner,
v.
WILLIAM M. TERRY,
Respondent.

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CIVIL ACTION NO. 5:11-CV-28 (MTT)

ORDER
This case is before the Court on the Recommendation (Doc. 21) of United States
Magistrate Judge Charles H. Weigle on the Defendant’s Motion to Dismiss (Doc. 13). In
the Recommendation, the Magistrate Judge recommends dismissing this action
because the Petitioner’s petition for writ of habeas corpus is untimely under the one
year period of limitation set forth in 28 U.S.C. § 2244(d). Therefore, the Petitioner’s
petition should be dismissed because it is barred by the applicable limitations period
and because Petitioner failed to show any cause for tolling the limitations period.1 The
Petitioner has objected to the Recommendation (Doc. 23). The Court has thoroughly

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It should be noted that the Magistrate Judge is correct when stating that “Petitioner’s
convictions became final no later than Monday December 31, 2007, the first business day after
the twenty day period during which he could have timely filed a petition for writ of certiorari in the
Georgia Supreme Court expired.” (Doc.21). Because the Defendant did not timely file a writ of
certiorari in the state court of last resort, the Georgia Supreme Court, he relinquished his right to
file a petition for certiorari with the United States Supreme Court; and therefore, his right to the
ninety day tolling period for seeking such review. See Clay v. United States, 537 U.S. 522, 527
(2003) (finality attaches “when…the time for filing [United States Supreme Court] certiorari
petition expires…”).

considered the Petitioner’s Objection but concludes that his objections do not warrant
rejection or modification of the Magistrate Judge’s findings.
The Court accepts and adopts the findings, conclusions and recommendations of
the Magistrate Judge. Further, pursuant to the Magistrate Judge’s recommendation, a
certificate of appealability is denied. The Recommendation is adopted and made the
order of this Court. The Motion to Dismiss is GRANTED.
SO ORDERED, this the 6th day of September, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
bnw

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