THOMAS v. WILLIAMS

Filing 15

ORDER ADOPTING 13 Report and Recommendations and GRANTING 8 Motion to Dismiss. COA is DENIED. IFP on appeal is DENIED. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 4/15/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LASTARZA R. THOMAS,
Petitioner,
v.
Warden DOUG WILLIAMS,
Respondent.

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CIVIL ACTION NO. 5:14-CV-307 (MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle.
(Doc. 13). The Magistrate Judge recommends granting the Respondent’s motion to
dismiss the Petitioner’s application for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 as untimely. (Docs. 1; 8). The Magistrate Judge further recommends that a
certificate of appealability be denied. The Petitioner has objected to the
Recommendation. (Doc. 14). The Court has reviewed the objection and has made a
de novo determination of the portions of the Recommendation to which the Petitioner
objects. The Petitioner contends, as he did in response to the motion to dismiss, that
his petition was timely filed pursuant to 28 U.S.C. § 2244(d)(1)(C) because it is based
on a new rule of constitutional law announced in Hinton v. Alabama, 134 S. Ct. 1081
(2014). However, the Court agrees the petition is not timely for the reasons stated in
the Recommendation.1

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The Recommendation lists the date the Petitioner’s § 2254 petition was due as September 14, 2010.
Because the Petitioner filed his state habeas petition on October 2, 2009, when 227 days of the one-year
limitations period had elapsed, the time to file his federal habeas petition expired 138 days after the
limitations period began to run again on April 5, 2010 (30 days after the state habeas court denied the
state petition). The operative date, August 21, 2010, fell on a Saturday, so the Petitioner had until the

The Court has reviewed the Recommendation and the Petitioner’s objection, and
the Court accepts and adopts the findings, conclusions, and recommendations of the
Magistrate Judge. The Recommendation is ADOPTED and made the order of this
Court. Accordingly, the Defendant’s motion to dismiss (Doc. 8) is GRANTED, and the
petition (Doc. 1) is DISMISSED as untimely.
CERTIFICATE OF APPEALABILITY
A prisoner seeking to appeal a district court’s final order denying his petition for
writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate
of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A). As amended effective December
1, 2009, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States
District Courts provides that “[t]he district court must issue or deny a [COA] when it
enters a final order adverse to the applicant,” and if a COA is issued “the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C.
§ 2253(c)(2).”
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” This requires a
demonstration that “jurists of reason could disagree with the district court’s resolution of
[a petitioner’s] constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). When the Court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claims, as in this case, the petitioner must
show that “jurists of reason would find it debatable whether the district court was correct

following Monday, August 23, 2010, to file his petition. However, the actual date is immaterial because
both sides agree the petition was not timely pursuant to 28 U.S.C. 2244(d)(1)(A).

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in its procedural ruling”; and (2) “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). The Petitioner has not made these showings. Therefore,
Petitioner is DENIED a COA. Additionally, because there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. §
1915(a)(3). Accordingly, any motion to proceed in forma pauperis on appeal is
DENIED.
SO ORDERED, this 15th day of April, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT

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