POWELL v. HILL

Filing 29

ORDER ADOPTING 28 Report and Recommendations; GRANTING 25 Motion to Dismiss; and TERMINATING as MOOT 9 Motion to Dismiss. Petitioner's § 2254 petition is DIMISSED with prejudice as untimely. Petition is DENIED a COA. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/25/2017. (tlh)

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

Petitioner,
v.
Warden CLAY TATUM,

Respondent.

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CIVIL ACTION NO. 5:16-CV-451 (MTT)

ORDER
United States Magistrate Judge Charles H. Weigle recommends the Court grant
Respondent Warden Clay Tatum’s Motion to Dismiss (Doc. 25) Petitioner Duron
Powell’s 28 U.S.C. § 2254 petition because the Petitioner failed to file his petition within
the one-year statute of limitations period set forth in the Antiterrorism and Effective
Death Penalty Act (AEDPA). See generally Doc. 28. The Magistrate Judge found that
the statute of limitations began to run on August 21, 2014 but was tolled by the
Plaintiff’s various post-judgment motions with the sentencing court. Id. at 6. Despite
the multiple periods of tolling, the Magistrate Judge found the one-year statute of
limitations ultimately ran by the time the Petitioner filed his § 2254 petition on October
14, 2016. Id. at 6-7. Thus, the Magistrate Judge recommends the petition be dismissed
as untimely. The Petitioner has not objected to the Recommendation. The Court has
reviewed the Recommendation, and the Court adopts the findings, conclusions, and
recommendations of the Magistrate Judge. Accordingly, the Respondent’s Motion to
Dismiss (Doc. 25) is GRANTED and the Petitioner’s § 2254 petition is DIMISSED with

prejudice as untimely. The Clerk is DIRECTED to terminate as moot a prior Motion to
Dismiss (Doc. 9) filed by Warden Chris Hill, the former respondent, who is no longer a
party. See Doc. 20.
CERTIFICATE OF APPEALABILITY
Additionally, the Magistrate Judge recommends the Court deny a certificate of
appealability (COA). Doc. 28 at 7. 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. 28 U.S.C. § 2253(c)(1)(A).
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 (1) “jurists of reason would find it debatable whether the district court was
correct 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.
Accordingly, the Magistrate Judge’s Recommendation is ADOPTED and the Petitioner
is DENIED a COA.

SO ORDERED, this the 25th day of August, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT