Reynolds v. MCLAUGHLIN
ORDER granting 7 Motion to Dismiss; adopting 11 Report and Recommendations with modifications; a COA will not be issued. Ordered by Judge Hugh Lawson on 7/15/2013. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
Civil Action No. 7:12-CV-140 (HL)
Warden GREGORY McLAUGHLIN,
This case is before the Court on the Recommendation of United States
Magistrate Judge Thomas Q. Langstaff (Doc. 11). The Magistrate Judge
recommends that Respondent’s Motion to Dismiss (Doc. 7) be granted because
Petitioner’s habeas petition was untimely filed. The Magistrate Judge also
recommends that a Certificate of Appealability be denied.
Petitioner has filed objections to the Recommendation. The Court has made a
de novo review of the parts of the Recommendation to which Petitioner objects and
finds as follows.
Petitioner does not dispute that his habeas petition was untimely filed. He
argues instead that he is entitled to equitable tolling of the time limitation.
Equitable tolling of the habeas corpus statute of limitations is available if the
prisoner demonstrates that (1) he has pursued his rights diligently and (2) an
extraordinary circumstance prevented him from timely exercising his rights. Holland
v. Florida, 560 U.S. ---, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010). Equitable
tolling is available only where a movant untimely files his motion due to extraordinary
circumstances that are beyond his control. Hunter v. Ferrell, 587 F.3d 1304, 1308
(11th Cir. 2009). Equitable tolling is a rare and extraordinary remedy. San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).
Petitioner’s first asserted basis for equitable tolling is that his appellate
attorney did not tell him when his state court convictions were affirmed by the
Georgia Court of Appeals on August 26, 2004. When a petitioner asserts that his
attorney was responsible for his failure to file a petition in a timely manner, he must
allege “serious attorney misconduct” in order to be entitled to equitable tolling.
Holland, 130 S.Ct. at 2564. Further, “[t]here must be a causal connection between
the alleged extraordinary circumstances and the late filing of the motion.” Lucas v.
United States, --- F.App’x ---, No. 12-15804, 2013 WL 2985800, *3 (11th Cir. June
Petitioner does not say in his objection when he actually found out about the
appellate court’s decision, but this matter was addressed during his state habeas
hearing wherein the respondent moved to dismiss the state petition as untimely.
Petitioner testified as follows:
Sir, in response to that trial, I filed a motion to object
because I didn’t receive my case file from my appellant
attorney, sir, to properly litigate my case. I didn’t even
know that my appeal had been affirmed until almost a year
afterwards when I wrote the Court of -- Superior Court of
Wilkes County to find out an update on my case.
I was never informed by appellant attorney, nor my trial
attorney, concerning the appeal or the outcome of it. And
after I found out about it, I wrote my appellant attorney to
receive a copy of my case file, but I never did receive it.
(Habeas Corpus Hr’g Tr., May 12, 2010, pp. 3-4; Doc. 10-3).
Petitioner’s convictions became final on September 5, 2004. Giving Petitioner
the full benefit of the doubt, he learned no later than August 26, 2005 that his state
convictions had been affirmed. This means that at the time he learned about the
appellate court’s decision, the one-year time limit for Petitioner to file a federal
habeas petition, or to toll the federal period with a properly filed state filing, had not
yet expired. But Petitioner took no action. Petitioner, knowing full well that his state
appeal had been denied, decided to wait until November of 2009 to file his state
habeas petition. Even assuming appellate counsel never told Petitioner about the
appellate decision, this is not a matter where the limitations period had already run
when the petitioner learned of the ruling. Petitioner still had time available to him to
pursue habeas relief.
Setting aside the issue of serious attorney misconduct, equitable tolling is not
appropriate here because there is no causal connection between Petitioner’s
counsel’s purported failure to notify Petitioner about the appellate decision and the
late filing of the petition. Petitioner was aware of the denial of his appeal before the
end of the one-year limitation period. There were no legal impediments preventing
Petitioner from filing a timely petition. While Petitioner complains that his attorney
would not give him the trial transcript and discovery materials, as discussed below,
those materials were not required for Petitioner to file his habeas petition. Simply
put, there are no extraordinary circumstances here with respect to notification about
the appellate decision that warrant equitable tolling.
Petitioner’s second argument in favor of equitable tolling is that his appellate
counsel would not send him the trial transcript and discovery. However, delay in
receiving the transcript and discovery from appellate counsel does not constitute
extraordinary circumstances warranting equitable tolling. Access to transcripts and
other trial materials is not necessary to file a habeas petition. See Lloyd v. Van
Natta, 296 F.3d 630, 633-34 (7th Cir. 2002) (holding that petitioner’s inability to
obtain the trial transcript was not grounds for equitable tolling); Donovan v. Maine,
276 F.3d 87, 93 (1st Cir. 2002) (holding that the court’s delay in furnishing the
petitioner with the trial transcript was insufficient to justify equitable tolling); Jihad v.
Hvass, 267 F.3d 803, 806 (8th Cir. 2001) (holding that lack of access to a trial
transcript does not preclude a prisoner from commencing post-conviction
proceedings and therefore does not warrant equitable tolling). While Petitioner
argues that the transcript was necessary because the petition requires a petitioner to
state the specific facts that support his claim, that argument has been rejected. See
Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 751 (6th Cir. 2011) (holding that
the rules governing Section 2254 cases indicate that a lack of access to the trial
transcript is not the kind of extraordinary circumstance that prevents a timely habeas
filing); United States v. Oriakhi, 394 F.App’x 976, 977 (4th Cir. 2010) (“While [the
movant] may have subjectively believed that he could not properly file a § 2255
motion without first reviewing his transcript, his unfamiliarity with the legal process or
ignorance of the law cannot support equitable tolling.”) Thus, equitable tolling is not
warranted on this basis either.
Petitioner’s habeas petition was not timely filed. He is not entitled to equitable
tolling of the limitations period. Thus, Petitioner’s objections are overruled. The Court
accepts and adopts the Recommendation (Doc. 11), as modified by this Order.
Respondent’s Motion to Dismiss (Doc. 7) is granted. As recommended by the
Magistrate Judge, no Certificate of Appealability will be issued.1
SO ORDERED, this the 15th day of July, 2013.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
Petitioner did not object to the Recommendation to deny a Certificate of Appealability.
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