KELLY v. MCLAUGHLIN

Filing 20

ORDER ADOPTING 18 Report and Recommendations and GRANTING 13 Motion to Dismiss. A certificate of appealability is DENIED and any motion to proceed in forma pauperis on appeal is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/21/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
COURTNEY KELLY,
Petitioner,
v.
Warden GREGORY MCLAUGHLIN,

Respondent.

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CIVIL ACTION NO. 5:15-CV-133 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting the
Respondent’s motion to dismiss the Petitioner’s Section 2254 habeas petition as
untimely and denying a certificate of appealability. (Doc. 18). The Petitioner has filed
an objection to the Recommendation. (Doc. 19). Pursuant to 28 U.S.C. § 636(b)(1), the
Court has thoroughly considered the objection and has made a de novo determination
of the portions of the Recommendation to which the Petitioner objects. The Court has
reviewed the Recommendation, 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.
Although the Recommendation does not address the issue of equitable tolling, it
is clear the Petitioner is not entitled to this extraordinary remedy. The Petitioner has
failed to make any allegations or argument regarding how any of the alleged
“extraordinary circumstances,” including his attorney’s negligence and the delay in
receiving the trial court’s dismissal of his motion to withdraw his guilty plea, affected his

ability to timely file his federal petition. See San Martin v. McNeil, 633 F.3d 1257, 1267
(11th Cir. 2011) (requiring a petitioner “to show a causal connection between the
alleged extraordinary circumstances and the late filing of the petition”). Moreover, the
Petitioner argues that the documents he signed in state court did not inform him of
AEDPA’s one-year statute of limitations, but the state court did not have a duty to inform
him of the limitations period. See Outler v. United States, 485 F.3d 1273, 1282 n.4
(11th Cir. 2007). Although proceeding pro se, the Petitioner is “deemed to know of the
one-year statute of limitations,” id., and the Eleventh Circuit “ha[s] not accepted a lack of
a legal education as an excuse for a failure to file in a timely fashion.” Spears v.
Warden, 605 F. App’x 900, 904 (11th Cir. 2015) (citing Rivers v. United States, 416 F.3d
1319, 1323 (11th Cir. 2005)). Finally, the Petitioner has not met his burden of showing
that he exercised the requisite diligence. San Martin, 633 F.3d at 1267.
Therefore, the Respondent’s motion (Doc. 13) is GRANTED, the petition is
DISMISSED, and a certificate of appealability is DENIED. 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 21st day of June, 2016.

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

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