McMULLEN v. CALDWELL

Filing 18

ORDER granting 8 Motion to Dismiss; denying 11 Motion for Default Judgment; adopting 14 Report and Recommendations. Ordered by US DISTRICT JUDGE HUGH LAWSON on 4/30/2015. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

WILLIAM PAUL McMULLEN, JR.,
Petitioner,

7:14-CV-151 (HL)

v.

28 U.S.C. § 2254

ANTOINE CALDWELL,
Respondent.

ORDER
Before the Court is the Recommendation of the United States Magistrate
Judge (Doc. 14) that Petitioner’s habeas petition under 28 U.S.C. § 2254 be
dismissed. Petitioner William McMullen, Jr. (“Petitioner”) has filed Objections
(Doc. 17) to the Recommendation. After undertaking a de novo review of the
Recommendation, the Court accepts and adopts it in full.
Neither of Petitioner’s objections to the Recommendation have any merit.
First, Petitioner objects to the conclusion that his petition was filed after the
statute of limitations had run, for he argues that the statute of limitations should
be equitably tolled because he did not have access to the transcript of the
hearing in which he pled guilty to the state charges. However, as this and many
other courts have determined, lacking access to a transcript is not adequate
grounds for equitably tolling the statute of limitations. See Reynolds v.

McLaughlin, Civil Action No. 7:12-CV-140 (HL), 2013 WL 3756473, at *2 (M.D.
Ga. July 15, 2013) (citing cases). Second, Petitioner objects to the Magistrate
Judge’s sua sponte extension of time for Respondent to respond to the petition
and move to dismiss it. This objection fails to appreciate that district courts are
allowed wide discretion in setting deadlines in § 2254 cases. See Baker v.
Middlebrooks, No. 5:08cv44-RS-MD, 2008 WL 938725, at *1 (N.D. Fla. April 8,
2008) (citing cases). The objections are over-ruled.
After careful consideration pursuant to 28 U.S.C. § 636(b)(1), the Court
accepts and adopts the findings, conclusions, and recommendations of the
United States Magistrate Judge. Petitioner’s § 2254 petition is dismissed.
The Court finds that Petitioner has failed to make a substantial showing
that he has been denied a constitutional right, and a certificate of appealability is
therefore denied. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–
84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

SO ORDERED, this 30th day of April, 2015.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
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