RHODES v. PHILBEN
ORDER ADOPTING 26 Report and Recommendations; DENYING as moot 18 Motion for a Continuous; DENYING as moot 25 Motion to Compel; DENYING as moot 28 Motion to Strike ; DENYING as moot 29 Motion for Or der to Renew Motion to Compel; DENYING as moot 32 Motion for More Definite Statement; and GRANTING 12 Motion to Dismiss. The Clerk of Court is DIRECTED to docket the 24 Petitioner's Amended Motion to Support Exigent Tolling as a respons e to the 22 Respondents reply to a court order. The untimely petition is DISMISSED with prejudice. Certificate of appealability is DENIED. Any motion to proceed in forma pauperis on appeal is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/25/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
RON CHRISTOPHER RHODES,
Warden EDWARD PHILBEN,
CIVIL ACTION NO. 5:15-CV-146 (MTT)
United States Magistrate Judge Charles H. Weigle recommends granting the
Respondent’s motion to dismiss (Doc. 12) the Petitioner’s application for habeas relief
pursuant to 28 U.S.C. § 2254, denying the Petitioner’s Renewed Motion to Compel
Production of his Psychological Examination (Doc. 25) and “Motion for Continuous”
(Doc.18) as moot,1 and denying a certificate of appealability.2 (Doc. 26). The
Magistrate Judge makes this recommendation because the habeas petition was
untimely filed and the Petitioner is not entitled to equitable tolling. The Petitioner has
objected to the Recommendation (Doc. 27), and the Court has conducted a de novo
review of the portions of the Recommendation to which the Petitioner objects.
The Magistrate Judge also recommends that the Clerk of Court be directed to reconstrue the Petitioner’s
“Amended Motion to Support Exigent Tolling” (Doc. 24) as a response to Doc. 22. The Court accepts and
adopts this recommendation. The Clerk of Court is DIRECTED to docket the Petitioner’s Amended
Motion to Support Exigent Tolling (Doc. 24) as a response to the Respondent’s reply to a court order
The Magistrate Judge previously recommended that the Court grant the Respondent’s motion to
dismiss. (Doc. 17). However, because the Petitioner provided additional facts in his objection regarding
his mental incompetency, which were relevant to the issue of equitable tolling, the Court referred the
matter back to the Magistrate Judge to consider these additional facts. (Doc. 20). The Magistrate Judge
has considered those additional facts and has made the present recommendation.
The Court has reviewed the Recommendation and agrees with the Magistrate
Judge that the Petitioner’s habeas petition is untimely and that he failed to sufficiently
allege he is entitled to equitable tolling. Specifically, even taking his allegations as true
that he receives help from a writ writer, has a low IQ, is “mentally retard[ed],” and
“suffers [from] a mental impairment” (Doc. 19), the Court agrees for the reasons
discussed in the Recommendation that he failed to sufficiently allege a causal
connection between his alleged mental incompetency and his inability to file a timely
habeas petition. The Court also emphasizes that the Petitioner failed to establish he
has been pursuing his rights diligently.3 Nor has the Petitioner established that he is
entitled to an evidentiary hearing on the issue of equitable tolling.4 See Chavez v.
Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (“[I]f a habeas petition
does not allege enough specific facts that, if they were true, would warrant relief, the
petitioner is not entitled to an evidentiary hearing.”).
Therefore, 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 Respondent’s motion to dismiss (Doc.
12) is GRANTED, and the untimely petition is DISMISSED with prejudice. 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, a certificate of appealability is DENIED.
Additionally, because there are no non-frivolous issues to raise on appeal, an appeal
As noted by the Magistrate Judge, it took the Plaintiff over 15 years since he entered his guilty plea and
two years since after meeting and receiving help from his writ writer to file the present petition.
The Court notes that the Petitioner has repeatedly objected to the Respondent’s failure to provide the
psychiatric examination of Dr. Norman Moore. See, e.g., (Docs. 19 at 5; 24 at 2; 27 at 2). The
Respondent has supplemented the record with Dr. Norman Moore’s psychiatric examination of the
Petitioner. (Doc. 23-2 at 23-30).
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.
The Petitioner’s “motion for a continuous” (Doc. 18), motion to compel production
of his psychological examinations” (Doc. 25), motion to strike (Doc. 28), motion for order
to renew motion to compel (Doc. 29), and motion for more definite statement (Doc. 32)
are DENIED as moot.
SO ORDERED, this 25th day of August, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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