Porter v. Owens
Filing
21
OPINION AND ORDER that Magistrate Judge Alan J. Baverman's Final Report and Recommendation 19 is ADOPTED. IT IS FURTHER ORDERED that the Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus 5 is GRANTED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that Respondent's Motion to Dismiss Petition for Lack of Exhaustion 16 is DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 12/23/2014. (anc)
I.
BACKGROUND
On November 27, 1996, Petitioner pleaded guilty and was sentenced to:
(i) twenty years for voluntary manslaughter, as a lesser included offense of malice
murder (Count 1); (ii) twenty years, consecutive to Count 1, for armed robbery
(Count 3); and (iii) twenty years, concurrent to Count 3, for aggravated assault
(Counts 5, 7, and 8). (Doc. 7-5, at 57-58; see also Doc. 7-6 at 30). 1 Petitioner did
not appeal his conviction. (Doc. 7-1 at 1). On December 27, 1996, Petitioner,
proceeding pro se, filed a “motion to modify sentence” in the state court. (Doc.
7-8 at 14-18).2 The state court never addressed this motion.3
On July 7, 2008, over eleven years after he was convicted, Petitioner filed a
habeas corpus petition in the Superior Court of Wheeler County, Georgia, which
was denied on June 7, 2012.4 (Doc. 7-1 at 1; Doc. 7-3 at 1). Petitioner filed an
1
Petitioner was indicted for malice murder (Count 1), for felony murder
(Count 2), for armed robbery (Count 3), for kidnapping (Count 4), and for
aggravated assault (Counts 5, 6, 7, and 8). (Doc. 7-5, at 40-47).
2
Petitioner states that he filed the “motion to modify sentence” on December
13, 2000. (See Pet. at 3). The Court’s careful review of the record confirms that
Petitioner filed his pro se motion to modify his sentence on December 27, 1996.
(Doc. 7-5 at 14-18).
3
The facts involving the state court proceedings are set out in more detail in
the R&R. The parties have not objected to any facts set out in the R&R, and
finding no plain error in the Magistrate Judge’s findings, the Court adopts them.
See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993).
4
The case, No. 08CV158, was transferred to the Superior Court of Coffee
County, Georgia.
2
application for a certificate of probable cause in the Georgia Supreme Court, which
was denied on April 10, 2013. (Doc. 7-4).
On March 15, 2014, Petitioner filed his Petition pursuant to 28 U.S.C.
§ 2254.5 On May 5, 2014, Respondent filed an Answer [4], asserting several
defenses, including that the Petition was untimely. On the same day, Respondent
filed his Motion to Dismiss, arguing that the Petition was not filed within the
one-year limitations period set forth in 28 U.S.C. § 2244(d).
On May 20, 2014, Petitioner filed Response [8] to the Motion to Dismiss
and his identical Reply [9] to Respondent’s Answer. On May 29, 2014, Petitioner
filed his “Motion to Amend -- Motion Not to Dismiss Petition As
Untimely -- Reply to Respondent’s Answer-Response” [10, 11]. In his Response
and motion to amend, Petitioner appears to be arguing that his state petition should
have been considered timely and that the Petition was timely filed within one year
of the conclusion of his state habeas corpus proceedings. On October 16, 2014,
Respondent filed the Exhaustion Motion. Petitioner did not file a response to the
Exhaustion Motion.
5
The Petition, while docketed on March 25, 2014, is deemed filed on March
15, 2014, the date Petitioner provided his Petition to prison officials for mailing.
See Jeffries v. United States, 748 F.3d 1310, 1314 (11th Cir. 2014); see also
Houston v. Lack, 487 U.S. 266, 276 (1988).
3
On November 14, 2014, the Magistrate Judge issued his R&R,
recommending that the Petition be denied as untimely, because the one-year
limitations period for Petitioner to file a § 2254 petition expired on
December 27, 1997. (R&R at 10). Petitioner’s time for filing was not tolled
because he did not seek state collateral review until July 7, 2008, after his one-year
limitations period had expired. (R&R at 4, 10). The Magistrate Judge
recommended that a COA not be issued. (R&R at 11-12). The Magistrate Judge
recommended also that Respondent’s Exhaustion Motion be denied as moot.
Petitioner did not file any objections to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). A district judge “shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which a party has not asserted objections, the district judge
4
must conduct a plain error review of the record. United States v. Slay, 714 F.2d
1093, 1095 (11th Cir. 1983).
B.
Analysis
1.
Untimeliness and Statutory Tolling
The Magistrate Judge, after a careful and thorough review of the record,
recommended in his R&R that the Court grant Respondent’s Motion to Dismiss,
dismiss the Petition as untimely, and deny granting a COA. Because Petitioner did
not object to the Magistrate Judge’s finding that the Petition was untimely and
statutory tolling does not apply, the Court reviews these findings for plain error.
See Slay, 714 F.2d at 1095.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides a one-year statute of limitations to filing a habeas corpus action attacking
a state conviction. 28 U.S.C. § 2244(d)(1). The limitations period runs from the
latest of:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by
5
the Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A-D). The limitations period is statutorily tolled for “[t]he
time during which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2).
Here, Petitioner entered a guilty plea on November 27, 1996, and did not
pursue an appeal. The Magistrate Judge found that Petitioner’s convictions
became “final,” for purposes of federal habeas corpus, on December 27, 1996,
when the time for filing a notice of appeal expired. See O.C.G.A. § 5-6-38.
Noting that 28 U.S.C. § 2244(d)(1)(A) requires that federal habeas corpus petitions
be filed within one (1) year of a conviction becoming “final,” the Magistrate Judge
concluded that the limitations period for Petitioner to seek federal habeas relief
expired on December 27, 1997. See Downs v. McNeil, 520 F.3d 1311, 1318 (11th
Cir. 2008).6
6
The Magistrate Judge noted, and the Court agrees, that Petitioner’s
December 27, 1996, pro se motion to modify his sentence was without legal effect
under Georgia law because Petitioner was represented by counsel when he filed his
pro se motion. See Earley v. State, 712 S.E.2d 565, 567 (Ga. Ct. App. 2011). The
Magistrate Judge found that the “state trial court’s implicit disregard” of
6
Over ten years later, on July 7, 2008, Petitioner filed his state habeas corpus
petition. The Magistrate Judge found that, because the limitations period had
already expired, Petitioner’s state habeas petition did not affect the statutory tolling
calculation. See Webster v. Moore, 199 F.3d 1256, 1256 (11th Cir. 2000) (“A
state-court petition . . . that is filed following the expiration of the limitations
period cannot toll that period because there is no period remaining to be tolled.”).
On March 15, 2014, approximately sixteen years after the limitations period
expired, Petitioner filed his Petition.7
A review of the record clearly establishes that the Magistrate Judge correctly
calculated the one-year limitations period and correctly determined that statutory
tolling did not apply. The Magistrate Judge also properly determined that the
Petition was untimely. The Court finds no plain error in these findings and
conclusions. See Slay, 714 F.2d at 1095.
Petitioner’s motion does not affect the finality of his conviction, and the Court
finds no plain error in the Magistrate Judge’s finding.
7
In his Response to the Motion to Dismiss, Petitioner asserts that his state
petition should have been considered timely and that his federal Petition was
timely filed within one year of the conclusion of his state habeas corpus.
(Response at 11). The timeliness of Petitioner’s state habeas petition is not
relevant to the timeliness of his federal Petition, and AEDPA’s limitations period
does not begin running at the conclusion of a petitioner’s state habeas proceeding
but rather when a petitioner’s conviction becomes final, and is only tolled while a
state habeas proceeding is pending. See 28 U.S.C. § 2244(d)(1)(A), (d)(2).
7
2.
Equitable Tolling
In addition to statutory tolling, the AEDPA’s limitations period is subject to
equitable tolling, an “extraordinary remedy” which requires a petitioner to
demonstrate both “(1) diligence in his efforts to timely file a habeas petition and
(2) extraordinary and unavoidable circumstances.” Arthur v. Allen, 452 F.3d
1234, 1252 (11th Cir. 2006), modified on other grounds, 459 F.3d 1310 (11th Cir.
2006). See also Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
Petitioner bears “the burden of establishing that equitable tolling [is] warranted.”
See Pugh, 465 F.3d at 1300-01. After reviewing Petitioner’s pleadings, the
Magistrate Judge found that Petitioner did not meet his burden of demonstrating
that he is entitled to equitable tolling because 1) Petitioner “should have been
aware by at least September 1998 . . . that his pro se motion was of no effect and
that his conviction was final [on December 27, 1996],” and 2) Petitioner did not
show reasonable diligence because Petitioner waited to file his state habeas corpus
petition on July 7, 2008, over ten years after the limitations period for Petitioner to
seek federal habeas relief expired on December 27, 1997. (R&R at 10-11). The
Court finds no plain error in these findings and conclusions. See Slay, 714 F.2d at
1095.
8
3.
Certificate of Appealability
“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
When a district court has denied a habeas petition on procedural grounds without
reaching the merits of the underlying constitutional claim, the petitioner must show
that (1) “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” and that (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. at 484 (2000). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to proceed further.” Id.
The Magistrate Judge concluded that the decisive procedural issue,
untimeliness, was not debatable, and that no COA should be issued. The one-year
limitations period expired prior to Petitioner’s initiation of state habeas corpus
proceedings, rendering statutory tolling inapplicable, and Petitioner has failed to
provide any support for the contention that he is entitled to the extraordinary
remedy of equitable tolling. The Court finds no plain error in the Magistrate
9
Judge’s determination that a COA should not be issued. See Slay, 714 F.2d at
1095.8
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman’s
Final Report and Recommendation [19] is ADOPTED.
IT IS FURTHER ORDERED that the Respondent’s Motion to Dismiss the
Petition for Writ of Habeas Corpus [5] is GRANTED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss
Petition for Lack of Exhaustion [16] is DENIED AS MOOT.
SO ORDERED this 23rd day of December, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
8
Having determined that the Petition is untimely, the Court finds that
Respondent’s Exhaustion Motion is moot.
10
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