Slakman v. Johnson

Filing 25

ORDER and OPINION adopting 20 Final Report and Recommendation as the order of this Court; granting respondent's 8 Motion to Dismiss; denying 18 petitioner's Motion for Judgment. The 1 Petition is denied and dismissed as untimely, and a certificate of appealability is denied. Signed by Judge Julie E. Carnes on 9/30/12. (ekb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BARRY S. SLAKMAN,
Petitioner,

:
:
:
:
:
:
:

v.
GLEN JOHNSON,
Respondent.

HABEAS CORPUS
28 U.S.C. § 2254

CIVIL ACTION NO.
1:11-cv-2342-JEC-JFK

ORDER AND OPINION
Petitioner Barry S. Slakman has challenged his November 15, 2001
Fulton County convictions for murder and aggravated assault, pursuant
to 28 U.S.C. § 2254.

The matter is before the Court on the petition

[1], Respondent’s motion to dismiss as untimely [8], Petitioner’s
motion for judgment [18], the Final Report and Recommendation (“R&R”)
issued by United States Magistrate Judge King [20], and Petitioner’s
objections [22].
In reviewing a Magistrate Judge’s Report and Recommendation, the
district court “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to
which objection is made.”
objections
specifically

to

a

28 U.S.C. § 636(b)(1).

magistrate’s

identify

those

report
findings

and

“Parties filing

recommendation

objected

to.

must

Frivolous,

conclusive, or general objections need not be considered by the
district court.”
1988).

Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.

See also United States v. Schultz, 565 F.3d 1353, 1360 (11th

Cir. 2009)(“a party that wishes to preserve its objection must

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clearly advise the district court and pinpoint the specific findings
that the party disagrees with”).

Absent objection, the district

judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge,” 28 U.S.C.
§ 636(b)(1), if satisfied “that there is no clear error on the face
of the record.”

FED. R. CIV. P. 72, Advisory Committee Note, 1983

Addition, Subdivision (b).
I.

BACKGROUND
On July 14, 2011, Petitioner filed this federal habeas corpus

petition challenging his November 15, 2001 Fulton County convictions,
which became final on February 20, 2007, when the United States
Supreme Court denied certiorari.

(See R&R [20] at 2-3.)

Respondent

moved that the petition be dismissed as untimely because it was not
filed within the one-year limitations period for federal habeas
corpus petitions.

(Id.)

In reply to this motion to dismiss,

Petitioner argued that he was entitled to statutory tolling under 28
U.S.C. § 2244(d)(2) and that, under § 2244(d)(1)(B), the limitations
period

had

not

been

triggered

until

the

removal

impediment to his filing his federal petition.

of

the

state

(Pet’r’s Resp. [16]

at 1-8.)
The Magistrate Judge found that § 2244(d)(1)(B) did not apply,
that the limitations period was triggered for Petitioner when his
convictions became final, and that the record before the Court did
2

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not show that Petitioner was entitled to equitable tolling or the
actual innocence exception. (R&R [20] at 6-8.) The Magistrate found
(1) that 357 days of the federal limitations period ran between the
date Petitioner’s convictions became final (February 20, 2007) and
the date he filed his state habeas corpus petition (February 13,
2008), with only 8 days remaining; (2) that the federal limitations
period was tolled under § 2244(d)(2) only until November 6, 2009,
when Petitioner’s time to seek further review of the October 6, 2009
denial of his state petition in the Georgia Supreme Court expired;
(3) that with only 8 days remaining, the federal limitations period
expired by the end of November 2009; and (4) that Petitioner’s July
2011 federal petition was untimely by over twenty months. (Id. at 68.)

The Magistrate Judge has recommended granting Respondent’s

motion to dismiss and denying Petitioner’s motion for judgment and a
certificate of appealability.

(Id. at 10.)

Petitioner objects that the Magistrate Judge (1) incorrectly
identified October 6, 2009 as the date on which the state habeas
court denied relief; (2) erroneously deferred to the Georgia Supreme
Court’s

determination

that

his

CPC

application

was

untimely;

(3) incorrectly concluded that equitable tolling did not apply;
(4) incorrectly concluded that § 2244(d)(1)(B) did not apply; and
(5) incorrectly concluded that he did not raise a claim of actual
innocence as an exception to the federal one-year limitations period.
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(Pet’r’s Obj. [22] at 1, 9-14.)

For the reasons discussed below,

Petitioner’s objections lack merit.
II.

DISCUSSION
A.

The Date On Which The State Habeas Court Denied Relief

Petitioner asserts that his state habeas petition was not denied
until October 7, 2009, the date on which the order of denial was
filed.

(Id. at 2.)

The Magistrate Judge correctly stated that the

state habeas judge denied relief on October 6, 2009, the date that he
signed the order of denial.

(See Resp’t’s First Notice of Filing

[12], Ex. 3.) At any rate, in calculating the thirty-day time period
for seeking review of that order in the Georgia Supreme Court, the
Magistrate Judge and Georgia Supreme Court counted the 30 days from
October 7, 2009, which was the date the Order was filed, and
correctly determined that Petitioner’s CPC application was due on
November 6, 2009.

(See R&R [20] at 7 and Resp’t’s Notice of Filing

[12] at Ex. 4a.)
B.

Deference To The Georgia Supreme Court’s Determination That
Petitioner’s CPC Application was Untimely

As noted in the R&R, Petitioner had allowed all but 8 days of
his one-year period under AEDPA to expire before finally filing his
state habeas petition.

When the order denying that petition was

issued by the state habeas court on October 7, 2009, Petitioner had
30 days (or until November 6) to file a CPC application with the
4

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Georgia Supreme Court in support of his appeal of the habeas denial.
Statutory tolling under AEDPA continued through this 30-day period.
As found by the Georgia Supreme Court, when it ultimately dismissed
Petitioner’s CPC application as untimely, Petitioner did not file his
CPC application until November 9, 2009.
Deferring to the Georgia Supreme Court’s denial of the CPC
application as untimely, the magistrate judge concluded that the
tolling period under AEDPA ended on November 6, 2009, when the 30-day
period for filing the CPC application ended.1

With only 8 days left

to file a federal habeas, Petitioner should have filed the latter by
November 14, 2009.

Instead, he filed his federal habeas petition

over twenty months later, in July 2011.
Petitioner argues that the magistrate judge should not have
given deference, pursuant to Stafford v. Thompson, 328 F.3d 1302,
1305 (11th Cir. 2003), to the Georgia Supreme Court’s determination
that his CPC application was untimely.
(1)

Stafford

is

distinguishable

from

Petitioner argues that
his

case

as

Stafford’s

timeliness argument lacked merit and Petitioner’s timeliness argument
has merit; (2) there is clear and convincing evidence that his CPC

1

Relying on Stafford v. Thompson, 328 F.3d 1302, 1305 (11th
Cir. 2003), the Magistrate Judge gave deference to the Georgia
Supreme Court’s determination that Petitioner’s application for a
certificate of probable cause (“CPC application”), seeking review of
the denial of his state habeas corpus petition, was untimely. (Id.
at 8, n.7.)
5

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application was timely; and (3) the Georgia Supreme Court’s holding
to the contrary was not in accordance with regularly-followed and
well-established procedure concerning Georgia’s three-day mailbox
rule, as set out in O.C.G.A. § 9-11-6(e).

(Pet’r’s Obj. [22] at 4-

8.)
Stafford clearly provides that a federal court is “bound by the
state

court’s

determination

Stafford, 328 F.3d at 1305.
1260

(11th

Cir.

that

[an]

appeal

[is]

untimely.”

See also Wade v. Battle, 379 F.3d 1254,

2004)(“we

are

bound

by

the

determination that the appeal was untimely”).

state

court’s

Thus, the Court must

give “due deference” to the Georgia Supreme Court’s determination
that Petitioner’s state habeas petition was untimely. Wade, 379 F.3d
at 1260.
Further,

Petitioner

has

not

produced

clear

and

convincing

evidence that the Georgia Supreme Court’s timeliness decision was
incorrect.

The record shows that Petitioner’s state habeas petition

was denied on October 6, 2009, and that this decision was filed on
October 7, 2009.

(Pet’r’s Obj. [22] at 2 and Resp’t’s First Notice

of Filing [12] at Ex. 3.)

The thirty-day time period for seeking

further review in the Georgia Supreme Court expired, at the latest,
on November 6, 2009. See O.C.G.A. § 9-14-52(b)(establishing a thirty
day time period for filing a CPC application).

6

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Petitioner did not

submit his CPC application until November 9, 2009.

(Pet’r’s Obj.

[22] at 5.)
Petitioner

argues,

however,

that

he

was

entitled

to

an

additional three-day mailing period in calculating the 30 days by
which the habeas CPC application was due.
entitled to a 33-day period.

That is, he says he was

Petitioner contends that the Georgia

Supreme Court failed to properly apply this three-day extension to
the limitations period for filings that are made by mail.

(Id. at 4-

5.)
O.C.G.A.

§

9-11-6(e)

allows

three

days

to

be

added

to

a

prescribed time period when a party has the right or is required to
do some act “within a prescribed period after the service of a notice
or other paper . . . and the notice or paper is served upon the party
by mail or e-mail.”

O.C.G.A. § 9-11-6(e)(emphasis added).

The time

limit for filing a CPC application, however, is not triggered by a
requirement to do something “after the service of a notice or other
paper.”

O.C.G.A. § 9-11-6(e)(emphasis added).

filing a CPC application is triggered
denying . . . relief.”

The time limit for

by “the entry of the order

O.C.G.A. § 9-14-52(b)(“If an unsuccessful

petitioner desires to appeal, he must file a written application for
a certificate of probable cause to appeal with the clerk of the
Supreme Court within 30 days from the entry of the order denying him
relief.”). Thus, § 9-11-6(e) does not, by its terms, extend the time
7

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limit for filing a CPC application. Further, Petitioner has provided
no authority to suggest that it does.

He therefore has failed to

show that the Georgia Supreme Court erred in its calculation.
Petitioner also cites Massaline v. Williams, 274 Ga. 552 (2001).
(Pet’r’s Obj. [22] at 5-6.)
adopted

a

mailbox

rule

In Massaline, the Georgia Supreme Court

under

which

a

pro

se

prisoner’s

CPC

application is deemed filed on the date that the prisoner delivers it
to the prison authorities for forwarding to the clerk of court.

Id.

Massaline is unhelpful to Petitioner because he does not claim that
he delivered his habeas petition to prison authorities by the
November 6, 2009 deadline.

Rather, it appears that Petitioner

delivered the petition to the authorities on November 9, 2009 and it
was ultimately filed in the court on November 16, 2009.

(Id. at 5.)

It is true that a federal court is not required to defer to a
procedural determination, such as timeliness, by the Georgia Supreme
Court, if the procedural rule to which the latter court purportedly
adhered in dismissing the application is not a rule that is “firmly
established and regularly followed.

See Siebert v. Campbell, 334

F.3d 1018, 1025 (11th Cir. 2003)(“a rule governing filings must be
‘firmly established and regularly followed’ before noncompliance will
render a petition improperly filed for the purpose of AEDPA’s tolling
provision”).

Yet, Petitioner has failed to cite any authority

suggesting that the thirty-day time limit, as applied in this case,
8

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is not a regularly-followed and well-established procedure.

The

Magistrate Judge therefore correctly deferred to the Georgia Supreme
Court’s holding that Petitioner’s state habeas petition was untimely.
Wade, 379 F.3d at 1260.

As such, the state petition was not

“properly filed” as required to toll the one-year limitations period
applicable under § 2244(d)(2).
C.

Wade, 379 F.3d at 1260-61.

28 U.S.C. § 2244(d)(1)(B) And Equitable Tolling

28 U.S.C. § 2244(d)(1) provides that the one-year limitation
period shall run from the latest of four possible dates.

One of

those dates is the date on which “the impediment to filing an
appplication created by State action in violation of the Constitution
or law of the United States is removed, if the applicant was
prevented from filing by such State action.”

§ 2244(d)(1)(B).

Petitioner argues that § 2244(d)(1)(B) applies here because the
Georgia Supreme Court’s delay2 in deciding that his CPC application
was

untimely

violated

the

federal

constitution

by

effectively

suspending the writ of habeas corpus and creating an impediment that
prevented him from timely filing his federal petition. (Pet’r’s Obj.
[22] at 9-11.)

2

The CPC application was filed in November 2009; the Georgia
Supreme Court denied the application on timeliness grounds in July
2011.
9

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Section 2244(d)(1)(B) does not apply here because the described
state action--the Georgia Supreme Court’s delay in issuing a ruling
on the timeliness of Petitioner’s CPC application–-was not “an action
in violation of the Constitution or laws of the United States.”
Contrary to Petitioner’s argument, the delay did not suspend the writ
of

habeas

corpus

or

prevent

him

from

filing

a

timely

federal

petition.3
Petitioner also argues that, if the Georgia Supreme Court’s
delay does not trigger application of § 2244(d)(1)(B), this delay
should nonetheless prompt equitable tolling for the period of time
that the application was under review. The Court agrees with the
Magistrate Judge that to permit equitable tolling while Petitioner’s
untimely CPC application was under consideration “would eviscerate
the ‘properly filed’ requirement in 28 U.S.C. § 2244(d)(2).”4
379 F.3d at 1266.

Wade,

In short, the Court concludes, as did the

3

Moreover, as noted by the magistrate judge, a Petitioner has
the option of filing a protective petition in federal court to avoid
the predicament of attempting to exhaust state remedies only to later
find out that the state application was never properly filed, meaning
that statutory tolling never occurred. Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005).
4

Moreover, Petitioner waited until only 8 days were left under
AEDPA before even filing his state habeas petition. With that kind
of delay, he had to know that he was operating on a short leash that
greatly compromised his ability to file a timely federal habeas
petition and that would allow for no mistakes and no unforeseen
delays in the process.
10

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magistrate judge, that Petitioner’s federal habeas petition was filed
more than one-year after expiration of the limitations period set out
by AEDPA.
D.

Actual Innocence

Petitioner asserts that the Magistrate Judge’s failure to apply
the actual innocence exception was error because (1) in his traverse
to Respondent’s answer and in his motion for judgment, he “impl[ied]”
actual innocence based on his federal grounds 4(c) and (d) and 5(b);5
(2) “evidence supporting said grounds would be exculpatory scientific
evidence/testimony which were not argued at . . . trial;”6 and (3) he
has not yet filed his brief which “would substantiate the merits” of
his grounds for relief that show actual innocence.

(Pet’r’s Obj.

[22] at 2, 12-14.)

5

Petitioner in his federal ground 4(c) asserts that counsel was
ineffective for failing to “put into evidence” or argue that admitted
state evidence--hydrodynamics report, autopsy report, supplemental
offense report, and evidence from “shurgard storage”--established an
alibi for Petitioner. (Pet. [1], Suppl. at 5-6.) In federal ground
4(d), Petitioner argues that counsel was ineffective for failing to
argue that it would have been impossible for Petitioner to have
committed the crime “based solely on [the] State’s admitted
evidence,” trial testimony, and investigative reports. (Id. at 6.)
In federal ground 5(b), Petitioner asserts that appellate counsel was
ineffective for failing to raise on appeal ineffective assistance of
trial counsel on the above matters. (Id. at 7.)
6

Petitioner does not clearly describe what this evidence might

be.
11

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To the extent that actual innocence may provide an exception to
the one-year limitations period, it is an “exceedingly narrow”
exception.

San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.

2011)(quoting Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001))(internal quotation marks omitted), cert. denied, San Martin v.
Tucker, 132 S. Ct. 158 (2011).

The standard for showing actual

innocence is demanding and requires a petitioner “(1) to present ‘new
reliable evidence . . . that was not presented at trial,’ and (2) to
show ‘that it is more likely than not that no reasonable juror would
have found petitioner guilty beyond a reasonable doubt’ in light of
the new evidence.”

Rozzelle v. Sec’y, Fla. Dep’t of Corr., 672 F.3d

1000, 1011 (11th Cir. 2012)(citations omitted).
The Magistrate Judge correctly determined that the record did
not warrant application of the actual innocence exception, to the
extent that there is such an exception. Petitioner chiefly refers to
admitted state evidence, and he does not identify any new reliable
evidence nor demonstrate how or why such evidence would have made it
more likely that a reasonable juror would have been unable to find
him guilty.
III. CONCLUSION
Petitioner’s objections are without merit, and the Court finds
no clear error in the remainder of the Magistrate Judge’s Report and

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Recommendation. The Court adopts the magistrate judge’s Final Report
and Recommendation [20] as the Order of this Court.
IT IS ORDERED
GRANTED,

that Respondent’s motion to dismiss [8] is

Petitioner’s

motion

for

judgment

[18]

is

DENIED,

the

petition [1] is DENIED and DISMISSED as untimely, and a certificate
of appealability is DENIED.

IT IS SO ORDERED, this 30th day of SEPTEMBER, 2012.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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