Foster v. Williams

Filing 6

ORDER OVERRULING Petitioner's Objections 4 and ADOPTS the 3 Report and Recommendation as the opinion of the Court. The petition for writ of habeas corpus 1 is DISMISSED as impermissibly successive, and a Certificate of Appealability is DENIED. Signed by Judge Richard W. Story on 2/18/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN MILES FOSTER,
Petitioner,

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v.
STANLEY WILLIAMS,
Respondent.

PRISONER HABEAS CORPUS
28 U.S.C. § 2254

CIVIL ACTION NO.
1:15-CV-198-RWS

ORDER
Petitioner is a state prisoner who, pro se, challenges under 28 U.S.C. § 2254 his
judgment of conviction entered in Clayton County in 1994. (Doc. 1.) Magistrate
Judge Walker reviewed the petition as required by Rule 4 of the § 2254 Rules and
issued a Report and Recommendation that the petition be dismissed as impermissibly
successive. (Doc. 3 (“R&R”).) Petitioner filed objections to the R&R. (Doc. 4.)
A district judge must conduct a careful and complete review of a magistrate
judge’s R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). The
district judge must “make a de novo determination of those portions of the [R&R] to
which objection is made,” 28 U.S.C. § 636(b)(1)(C), while those portions of the R&R
for which there is no objection are reviewed only for clear error, Macort v. Prem, Inc.,
208 F. App’x 781, 784 (11th Cir. 2006).

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As noted in the R&R, Petitioner first challenged his state judgment under the
federal habeas laws fifteen years ago. Pet., Foster v. Rewis, No. 1:00-cv-1029-RWS
(N.D. Ga. Apr. 20, 2000). The Court dismissed the federal petition with prejudice
because Petitioner filed it after the one-year limitations period for filing it expired, and
the court of appeals affirmed the dismissal. Id., ECF Nos. 5, 8, 15.
Petitioner admits in his objections that he has not obtained permission from the
court of appeals to file another federal habeas petition challenging the state judgment.
(Doc. 4 at 2-3.) Petitioner has submitted to the court of appeals a request for such
permission that is still pending. (Id.) Petitioner cannot file another § 2254 petition in
this Court unless and until he obtains the court of appeals’ permission. See 28 U.S.C.
§ 2244(b )(3)(A); Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding that state
prisoner “was required to receive authorization from the Court of Appeals before filing
his second challenge” (emphasis added)).
Petitioner contends that his current petition is not successive because the
Georgia Supreme Court denied his direct appeal just one year ago and the one-year
limitations period for filing a federal habeas petition did not begin until that time.
(Doc. 4 at 1-2.) Petitioner argues that this Court thus lacked jurisdiction to dismiss his
first § 2254 petition as untimely because he had not exhausted his state remedies at that
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time. (Id.) Petitioner also argues that the one-year limitations period should be tolled.
(Id.)
Petitioner misrepresents the procedural history of his criminal case in the state
courts. In April 2013, almost nineteen years after he pled guilty in Clayton County,
Petitioner filed in the trial court an out-of-time motion to withdraw his guilty plea.
Foster v. State, 754 S.E.2d 78, 79 (Ga. 2014). The trial court dismissed that motion,
and Petitioner appealed. Id. It was that appeal that the Georgia Supreme Court
decided one year ago. Id. (affirming dismissal of untimely motion to withdraw plea).
That was not a direct appeal or the continuation of state-court proceedings that began
over twenty years ago, contrary to Petitioner’s representation. And even if the Court
could revisit the timeliness issue as to Petitioner’s first § 2254 petition – which it
cannot – Petitioner’s motion for out-of-time appeal could not toll the one-year
limitations period because he did not file that motion until April 2013, long after the
one-year period expired.
The bottom line is that the Court rendered judgment on Petitioner’s first § 2254
petition over a decade ago. If Petitioner wishes to challenge that judgment, he must
do so in the court of appeals. But he cannot file another § 2254 petition in this Court

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without first obtaining (and not merely requesting) permission from the court of
appeals to do so. Petitioner has not obtained such permission.
Accordingly, the Court OVERRULES Petitioner’s objections [4] and ADOPTS
the R&R [3] as the opinion of the Court.

The petition is DISMISSED as

impermissibly successive, and a certificate of appealability is DENIED.
SO ORDERED this 18th day of February, 2015.

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RICHARD W. STORY
United States District Judge

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