Jackson v. Brown
Filing
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OPINION AND ORDER that Magistrate Judge Janet F. King's Final Report and Recommendation 8 is ADOPTED. IT IS FURTHER ORDERED that Petitioner Preston D. Jackson's Petition for Writ of Habeas Corpus 1 is DISMISSED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge William S. Duffey, Jr on 10/6/2015. (anc)
Prison, in Effingham County, Georgia. On June 17, 2013, Petitioner pleaded guilty
to two counts of burglary, and was sentenced to a ten-year term of imprisonment
and a ten-year term of probation, to be served concurrently with a separate
sentence for robbery. (Pet. at 10; Resp’t Answer at 1). Petitioner did not appeal
his conviction or seek state collateral review. (Pet. at 2-4).
On November 3, 2014, Petitioner filed his Petition. 2 Petitioner claims that
there was “no proper representation,” he did not have any “knowledge of appeal,”
he “wanted to take [a] lie detector test,” and “[t]he conviction of robbery was not
even proven, [because there was] no evidence subjecting [Petitioner] to the crime.”
(Pet. at 6). Petitioner does not assert any factual allegations to support these
claims.
On March 16, 2015, Respondent filed her Answer [6], asserting that the
Petition should be dismissed as untimely because it was not filed within the
one-year limitations period set forth in 28 U.S.C. § 2244(d).
On May 21, 2015, the Magistrate Judge issued her R&R, recommending that
the Petition be dismissed as untimely because the one-year limitations period for
2
The Petition, while docketed on November 10, 2014, is deemed filed on
November 3, 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).
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Petitioner to file his habeas petition expired on July 17, 2014. The Magistrate
Judge also determined that: (1) Petitioner is not entitled to equitable tolling
because he did not seek collateral relief in state court, and (2) Petitioner is not
entitled to the actual innocence exception to the limitations period. The Magistrate
Judge also recommended that a COA be denied. 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 (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 objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). Petitioner did not
object to the R&R and the Court thus reviews it for plain error.
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B.
Analysis
1.
The R&R
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
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).
Petitioner pleaded guilty on June 17, 2013, and had thirty (30) days to appeal
his conviction. See O.C.G.A. § 5-6-38(a). Because Petitioner did not appeal his
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conviction, his conviction became final, for purposes of federal habeas corpus, on
July 17, 2013, when the time for filing an appeal expired. See id. Petitioner did
not seek state collateral review and, thus, the limitations period was not statutorily
tolled under 28 U.S.C. § 2244(d)(2). Because 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 July 17, 2014. See
Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008). The Magistrate Judge
recommended that the Petition be dismissed as untimely because Petitioner filed
his Petition on November 3, 2014, more than three (3) months after the limitations
period expired. (R&R at 4).
A review of the record shows that the Magistrate Judge correctly calculated
the one-year limitations period and correctly determined that statutory tolling did
not apply.3 The Magistrate Judge also properly determined that the Petition was
3
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); 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 v. Smith, 465 F.3d 1295, 1300-01 (11th Cir. 2006). Actual innocence also
provides an equitable exception to the AEDPA’s limitation period. See United
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untimely. The Court does not find any plain error in these findings and
conclusions. See Slay, 714 F.2d at 1095.
2.
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.
States v. Montano, 398 F.3d 1276, 1284 (11th Cir. 2005) (explaining that a
petitioner’s “actual innocence” may also lift the time bar that otherwise would
prevent consideration of his federal habeas claims). The Magistrate Judge found
that Petitioner’s time for filing did not toll because he did not seek state collateral
review. (R&R at 4). The Magistrate Judge also found that Petitioner is not entitled
to the actual innocence exception. (Id.). The Court finds no plain error in these
findings and conclusions. See Slay, 714 F.2d at 1095.
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The Magistrate Judge concluded that the decisive procedural issue,
untimeliness, was not debatable, and that a COA should not be issued. The
one-year limitations period expired before Petitioner filed his Petition, rendering
statutory tolling inapplicable, and Petitioner has failed to provide any support to
show he is entitled to the extraordinary remedy of equitable tolling. The Court
does not find any plain error in the Magistrate Judge’s determination that a COA
should not be issued. See Slay, 714 F.2d at 1095.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation [8] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner Preston D. Jackson’s Petition
for Writ of Habeas Corpus [1] is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
SO ORDERED this 6th day of October, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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