Moore v. Allen

Filing 7

OPINION AND ORDER adopting 5 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is DISMISSED under Rule 4 as untimely. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. Signed by Judge William S. Duffey, Jr on 3/29/2016. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LANORRIS MOORE,
Petitioner,
v.

1:15-cv-820-WSD

MARTY ALLEN,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [5] (“R&R”). The R&R recommends Petitioner
LaNorris Moore’s (“Petitioner”) petition for writ of habeas corpus under 28 U.S.C.
§ 2254 [1] (“Habeas Petition”) be dismissed under Rule 4 as untimely.
I.

BACKGROUND1
On August 17, 2009, Petitioner pled guilty in the Superior Court of Fulton

County to armed robbery, aggravated assault, aggravated battery, burglary,

1

The facts are taken from the R&R and the record. The parties have not
objected to any specific facts in the R&R, and the Court finds no plain error in
them. The Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993).

unlawful possession of a firearm, and criminal damage to property in the first
degree. ([1] at 1). The trial court sentenced Petitioner to thirty years, with twenty
of those to be served in prison. (Id.).
On January 14, 2010, Petitioner, pro se, filed a notice of appeal with the
Georgia Court of Appeals. On March 8, 2010, Petitioner filed with the state
appellate court his “enumeration of errors.” ([1] at 4). The same day, Petitioner
filed in the trial court a petition for a writ of injunction, in which he requested
counsel for the appeal, and transcripts of his plea hearing and the hearing on his
motion to withdraw his plea. (Id. at 3). Petitioner claims the trial court never ruled
on that petition. (Id.). It appears from the appellate court’s docket that the trial
court’s order denying Petitioner’s motion to withdraw his plea was entered on
December 21, 2009.2
Petitioner states that the court of appeals affirmed his judgment of
conviction on April 21, 2012. (Id. at 2). The court of appeals’ docket states that it
affirmed on April 21, 2010. For purposes of her R&R, the Magistrate Judge used
the later date provided by Petitioner as it is more favorable to him on the timeliness
issue.
2

Petitioner provided the case number for his appeal, ([1] at 4), enabling the
Court to retrieve the appeal docket from the appellate court’s website.
2

Petitioner did not seek a writ of certiorari from the Georgia Supreme Court.
([1] at 2).
On October 21, 2013, Petitioner filed a petition for a writ of habeas corpus
in the Superior Court of Lowndes County. (Id. at 2, 11). The court denied relief.
(Id. at 2). On March 10, 2014, the Georgia Supreme Court denied Petitioner a
certificate of probable cause to appeal the superior court’s ruling. (Id. at 3, 11).
Petitioner received notice of the Georgia Supreme Court’s ruling “after
March 17, 2014,” which was the date on which a copy of the ruling was received at
the prison. (Id. at 8, 10 (copy of envelope showing date received in prison mail
room)).
Petitioner currently does not have any petitions or appeals pending in any
court except the Habeas Petition in this action. (Id. at 4).
On March 15, 2015,3 Petitioner, pro se, filed his Habeas Petition. In it,
Petitioner claims that the lawyer who represented him when he pled guilty
rendered ineffective assistance, rendering his plea invalid, and that the prosecutor
failed to disclose exculpatory evidence. (Id. at 5-6).
3

A prisoner proceeding pro se is deemed to have filed a document in federal
court on the date he gave it to prison officials for mailing. Williams v. McNeil,
557 F.3d 1287, 1290 n.2 (11th Cir. 2009). Because Petitioner did not identify that
date and there is no contrary evidence, he is presumed to have given his petition to
officials for mailing on the day he signed it—March 15, 2015. See Washington
v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001); ([1] at 9).
3

On April 15, 2015, the Magistrate Judge issued her R&R. In it, the
Magistrate Judge found that Petitioner’s Habeas Petition was untimely, and that
Petitioner failed to show any basis to excuse his untimely filing. (R&R at 7). The
Magistrate Judge recommended that the Habeas Petition be dismissed and that a
certificate of appealability be denied. (Id. at 8).
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) (per curiam). 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). Where, as here, no party has objected to the report and
recommendation, a court conducts only a plain error review of the record. United
States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

Absent extraordinary circumstances, a federal court may not consider the
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merits of a petition for a writ of habeas corpus unless it is timely filed. 28 U.S.C.
§ 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run 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.
(2) The 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 shall not be counted toward any period
of limitation under this subsection.
28 U.S.C. § 2244(d).
The Magistrate Judge determined that the one-year limitations period in this
case began when Petitioner’s judgment of conviction became final by expiration of
the time to seek the last step of direct review, as the Habeas Petition does not
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indicate that any other triggering date applies. (R&R at 6). When the Georgia
Court of Appeals affirmed Petitioner’s judgment of conviction on April 21, 2012,4
Petitioner had ten days to file a notice of intent to seek certiorari review from the
Georgia Supreme Court. See Ga. Sup. Ct. R. 38. He failed to do so, and his
judgment of conviction thus became final on May 1, 2012, when the ten-day period
ended. See 28 U.S.C. §2244(d)(1)(A); Sup. Ct. R. 13(1). The Magistrate Judge
found that the one-year period for filing a federal habeas petition began on May 1,
2012, and ended on May 1, 2013, almost two years before Petitioner filed his
Habeas Petition. (R&R at 6).
The Magistrate Judge also determined that Petitioner’s state habeas action—
filed on October 21, 2013—did not toll the one-year limitations period for filing a
federal habeas petition, because the one-year period—which ended on
May 1, 2013—expired before Petitioner filed the state petition. (R&R at 7). The
Court finds no plain error in these findings and recommendation. See Slay, 714
F.2d at 1095; Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (“[A] state
court petition . . . that is filed following the expiration of the federal limitations
period cannot toll that period because there is no period remaining to be tolled.”
(internal quotation marks omitted)).
4

The Magistrate Judge used Petitioner’s later date.
6

The Magistrate Judge found that Petitioner failed to show any basis to
excuse his untimely filing, and concluded that his Habeas Petition should be
dismissed under Rule 4 as untimely. The Court finds no plain error in these
findings and recommendation. See Slay, 714 F.2d at 1095.
The Magistrate Judge also recommended that a Certificate of Appealability
(“COA”) be denied because the timeliness issue is dispositive and not reasonably
debatable. (R&R at 8). The Court finds no plain error in this finding and
recommendation, and a COA is denied. See Slay, 714 F.2d at 1095.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Gerrilyn G. Brill’s Final

Report and Recommendation [5] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED under Rule
4 as untimely.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.

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SO ORDERED this 29th day of March, 2016.

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