ENGLISH v. WILLIAMS

Filing 15

ORDER ADOPTING as modified 12 Report and Recommendation and GRANTING 7 Motion to Dismiss. A certificate of appealability is DENIED. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 12/23/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

JOHN McNAUGHTON ENGLISH, SR.,
Petitioner,
v.
Warden DOUG WILLIAMS,
Respondent.

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CIVIL ACTION NO. 5:14-CV-65 (MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle.
(Doc. 12). The Magistrate Judge recommends granting the Respondent’s motion to
dismiss (Doc. 7) because the Petitioner did not file his 28 U.S.C. § 2254 petition within
AEDPA’s one-year period of limitations and failed to establish entitlement to equitable
tolling. The Petitioner objected to the Recommendation and requested an appointment
of counsel and an evidentiary hearing “for habeas corpus relief.” (Doc. 13). Pursuant to
28 U.S.C. § 636(b)(1), the Court has considered the Petitioner’s objection and made a
de novo determination of the portions of the Recommendation to which the Petitioner
objects.
On February 18, 2014, the Petitioner filed two separate 28 U.S.C. § 2254
petitions which, when reasonably construed, challenge two different state court
judgments. The petition in this case, which was filed first, challenges a judgment, dated
June 30, 2005, entered on the Petitioner’s guilty plea (Doc. 1 at 1), and the second
petition challenges a judgment, dated August 4, 2005, entered on a jury-trial conviction.

English v. Williams, No. 5:14-CV-66, 2014 WL 6879392 (M.D. Ga.). Magistrate Judge
Stephen Hyles issued a Recommendation on the second petition regarding the jury-trial
conviction which recommended dismissing the petition because the Petitioner did not
file his 28 U.S.C. § 2254 petition within AEDPA’s limitations period. Id. at *1. On
December 5, 2014, the Court adopted as modified the Recommendation. Id. Judge
Weigle construes the petition now before the Court—the first petition—as seeking
habeas corpus relief on the judgments entered on both the guilty plea and the jury-trial
conviction.1 But again, the petition in this action, reasonably construed, seeks habeas
corpus relief only on the judgment entered on June 30, 2005, for the guilty plea.
Accordingly, to the extent Judge Weigle’s Recommendation concludes the
Petitioner did not file his first petition regarding the conviction on his guilty plea within
AEDPA’s limitations period, the Court agrees. The Court disagrees that the first petition
seeks relief from the judgment entered on the jury verdict. As stated above, the Court
has already ruled that the second petition regarding the jury-trial conviction was
untimely. Moreover, because the first and second petitions challenge different state
court judgments, they are not successive for purposes of 28 U.S.C. § 2244(b).2 See
Magwood v. Patterson, 561 U.S. 320, 331 (2010) (holding 28 U.S.C. § 2244(b)’s bar on
successive habeas petitions only applies when the same state court judgment is being
challenged by the successive petition); see also Gonzales v. Crosby, 545 U.S. 524, 530

1

The Petitioner also asserts in his objection that he is seeking relief on both the judgment entered on the
guilty plea and the judgment entered on the jury-trial conviction. (Doc. 13 at 1). However, as
aforementioned, the two petitions challenge two different state court judgments. The Petitioner in the first
petition specifies he is challenging the judgment dated June 30, 2005 (Doc. 1 at 1), and in the second
petition, he specifies he is challenging the judgment dated August 4, 2005.

2

For future purposes, when the same party files two separate habeas petitions, the Attorney General
should notify the Court.
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(2005) (“[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a
state court’s judgment of conviction.”).
The Court has reviewed the Recommendation and accepts the findings,
conclusions and recommendations of the Magistrate Judge except as modified by this
Order. The Recommendation is ADOPTED as modified and made the Order of this
Court. Thus, the Petitioner’s requests for an appointment of counsel and an evidentiary
hearing are moot. Further, the Petitioner has not made a substantial showing of the
denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Therefore, the
Respondent’s motion to dismiss is GRANTED, and a certificate of appealability is
DENIED.
SO ORDERED, this 23rd day of December, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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