Adan v. Toole

Filing 13

OPINION AND ORDER adopting the Magistrate Judge Janet F. Kings Final Report and Recommendation 11 , granting Respondent Robert Tooles Motion to Dismiss 9 and dismissing this action under Rule 4 as untimely. It is further ordered that a Certificate of Appealability is denied. Signed by Judge William S. Duffey, Jr on 9/22/16. (ddm)

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

1:15-cv-4256-WSD

ROBERT TOOLE,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [11] (“R&R”). The R&R recommends the Court
grant Respondent Robert Toole’s (“Respondent”) Motion to Dismiss [9].
I.

BACKGROUND
Petitioner Saleeban Adan (“Petitioner”) pleaded guilty in the Superior Court

of DeKalb County, Georgia to two counts of felony murder. ([10.5]). On
December 8, 2010, Petitioner received a life term of imprisonment. (Id.).
Petitioner states he did not seek direct review. (Pet. [1] at 2). On
December 24, 2014, Petitioner filed in the Tattnall County Superior Court a state
habeas corpus petition, in which he challenged his convictions. ([10.1]). A state
habeas corpus hearing was scheduled for March 24, 2016. ([10.3]).

On December 1, 2015,1 Petitioner filed his federal habeas corpus petition [1]
(“Petition”). Petitioner states that he did not file a direct appeal because “he does
not have the mental capability to file or anything [sic] on his own . . . . If [his]
mental status would of [sic] been checked he would never [have] been sent to
prison. He needs help not prison.” (Pet. at 3, 6).
On March 25, 2016, Respondent filed his Motion to Dismiss, seeking to
dismiss the Petition as untimely and for lack of exhaustion. ([9.1] at 2-6).
On August 17, 2016, the Magistrate Judge issued her R&R. The Magistrate
Judge found that Petitioner’s Petition is untimely, and that equitable tolling does
not apply. The Magistrate Judge also recommends the Court deny a Certificate of
Appealability, “because untimeliness is not debatable based on the record before
the Court.” (R&R at 7). Petitioner did not file any objections to the R&R, and has
not otherwise taken any action this case.

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“Under the prison mailbox rule, a pro se prisoner’s court filing is deemed
filed on the date it is delivered to prison authorities for mailing.” Jeffries v. United
States, 748 F.3d 1310, 1314 (11th Cir. 2014) (internal quotation marks omitted)
(quoting United States v. Glover 686 F.3d 1203, 1205 (11th Cir. 2012)), cert.
denied, 135 S. Ct. 241 (2014). Absent evidence to the contrary, the Court assumes
the motion was delivered to prison authorities on the day the prisoner signed it.
Washington v. United States, 243 F.3d 1301, 1301 (11th Cir. 2001).

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II.

ANALYSIS
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 court
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.

Discussion

Absent extraordinary circumstances, a federal court may not consider the
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;

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(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 one-year statute of limitations is subject to equitable tolling if the
petitioner “shows (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented timely filing.”
Lugo v. Sec’y Fla. Dep’t of Corr., 750 F.3d 1198, 1207 (11th Cir. 2014).
“[E]quitable tolling is an extraordinary remedy which is sparingly applied, and [the
movant bears] the burden of proving equitable tolling.” Williams v. United States,
491 F.3d 1282, 1284 (11th Cir. 2007).
The Magistrate Judge determined that, because the record does not suggest
that the provisions of subsections 2244(d)(1)(B)-(D) apply, the federal limitations
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period began to run when Petitioner’s conviction “became final by the conclusion
of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). The Magistrate Judge found that Petitioner’s conviction became
final on January 7, 2011, upon the expiration of the thirty-day time period for
seeking appellate review of his December 8, 2010, conviction. (R&R at 5 (citing
O.C.G.A. § 5-6-38)). Thus, Petitioner had until January 7, 2012, to file his
Petition. The Court finds no plain error in these findings. See Slay, 714 F.2d at
1095.
The Magistrate Judge found that Petitioner’s 2014 state habeas corpus
petition was filed after the federal limitations period expired and, thus, cannot
provide statutory tolling. (R&R at 5 (citing Sibley v. Culliver, 377 F.3d 1196,
1204 (11th Cir. 2004))). The Magistrate Judge also found that Petitioner’s
indication that he has some type of mental incapacity does not warrant equitable
tolling, because equitable tolling under such circumstances is appropriate only if a
petition shows a “causal connection” between his mental limitations and his ability
to file a timely petition. (Id.). The Magistrate Judge determined Petitioner failed
to show such a causal connection. (See id. at 5-6). Because the limitations period
expired on January 7, 2012, and Petitioner filed his Petition in December 2015, the

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Magistrate Judge recommends the Petition be denied as untimely. The Court finds
no plain error in these findings and recommendation. See Slay, 714 F.2d at 1095.
The Magistrate Judge also recommends the Court deny a Certificate of
Appealability, “because untimeliness is not debatable based on the record before
the Court.” (R&R at 7). The Court finds no plain error in these findings and
recommendation, and a Certificate of Appealability is denied. See Slay, 714 F.2d
at 1095. Petitioner is advised that he “may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure
22.” Rule 11(a), Rules Governing § 2254 Cases in the United States District
Courts.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final

Report and Recommendation [11] is ADOPTED.
IT IS FURTHER ORDERED that Respondent Robert Toole’s Motion to
Dismiss [9] IS GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED under Rule
4 as untimely.

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IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.

SO ORDERED this 22nd day of September, 2016.

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