Drake v. Holt
Filing
21
OPINION AND ORDER ADOPTING 18 Second Final Report and Recommendation, GRANTING 14 Motion to Dismiss, and DENYING a Certificate of Appealability. 10 Final Report and Recommendation is denied as moot. Petitioner's 1 Petition for Writ of Habeas Corpus is DISMISSED. Signed by Judge William S. Duffey, Jr. on 5/5/2017. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THEODORE DRAKE,
Petitioner,
v.
1:16-cv-1395-WSD
AHMED HOLT,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Catherine M. Salinas’
Second Final Report and Recommendation [18] (“Second R&R”), recommending
that Respondent Ahmed Holt’s (“Respondent”) Renewed Motion to Dismiss
Petition as Untimely [14] (“Second Motion to Dismiss”) be granted, that Petitioner
Theodore Drake’s (“Petitioner”) Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 [1] (“Federal Habeas Petition”) be dismissed, and that a
certificate of appealability be denied. Also before the Court are Petitioner’s
Objections [20] to the Second R&R.
I.
BACKGROUND
In March 2007, a DeKalb County grand jury indicted Petitioner on three
counts of aggravated stalking, one count of aggravated assault, one count of
kidnapping with bodily injury, one count of burglary, and one count of criminal
damage to property in the second degree. ([8.4] at 1-2). The indictment charged
Petitioner with committing all of these offenses against Ciara Howell. ([8.4]
at 1-2). On May 28, 2010, after a four-day trial, a DeKalb County jury convicted
Petitioner of one count of simple battery, in violation of O.C.G.A. § 16-5-23(a),
and three counts of aggravated stalking, in violation of O.C.G.A. § 16-5-91(a).
([1]; [8.1] at 1). Petitioner was found not guilty on the remaining charges. ([8.4]
at 2). The trial court sentenced Petitioner to fourteen years in prison. ([1] at 1).
Petitioner appealed, “contending that the trial court allowed the victim to make
impermissible comments about his character in the presence of the jury.” ([8.1] at
1). On April 4, 2012, the Georgia Court of Appeals affirmed the trial court’s
judgment. ([8.1]). On January 7, 2013, the Georgia Supreme Court denied
Petitioner’s petition for certiorari. ([8.2]). Petitioner did not seek certiorari review
in the United States Supreme Court. ([7.1] at 4).
More than a year later, on March 6, 2014, Petitioner filed a state habeas
corpus petition challenging his convictions, asserting three claims for ineffective
assistance of appellate counsel. ([8.3]). On May 5, 2015, after holding an
evidentiary hearing, the state habeas court denied Petitioner’s petition. ([8.4]). On
September 8, 2015, the Georgia Supreme Court denied Petitioner’s application for
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a certificate of probable cause to appeal. ([8.5]). On October 5, 2015, the Georgia
Supreme Court transmitted the remititur to the Superior Court of Gwinnett County,
marking the end of Petitioner’s state habeas proceedings. ([8.6]).
On April 20, 2016, Petitioner filed his Federal Habeas Petition, asserting
eight claims for ineffective assistance of trial and appellate counsel. ([1] at 5-6).
On June 13, 2016, Respondent filed his first Motion to Dismiss Petition as
Untimely [7] (“First Motion to Dismiss”), arguing that the Federal Habeas Petition
should be dismissed as untimely. ([7.1]). On September 20, 2016, Petitioner filed
his Reply in Opposition to Respondent’s Motion to Dismiss as Untimely [9].
Petitioner did not dispute Respondent’s assertion that his Federal Habeas Petition
was filed outside the one year period ordinarily required by 28 U.S.C. § 2244(d),
but argued that he is “factually innocent” and thus qualifies for an equitable
exception to the one-year limitations period imposed by 28 U.S.C. § 2244(d). ([9]
at 1-3). Petitioner claimed “[c]redible testimonial evidence, which was not
previously available, exists that would establish [his] claim.” ([9] at 3). Petitioner
did not explain what this evidence was and did not submit any evidence with his
brief.
On September 23, 2016, the Magistrate Judge issued her first Final Report
and Recommendation [10] (“First R&R”), recommending that Respondent’s First
3
Motion to Dismiss Petition be granted and that Petitioner’s Federal Habeas Petition
be dismissed as untimely. The Magistrate Judge found that Petitioner did not show
he qualified for the “actual innocence” exception to the one year limitations period
because he failed to “submit[] any affidavits that identify new witnesses,
summarize the new facts to which they would testify, and explain why those
witnesses and their testimony were previously unavailable.” (First R&R at 2).
On October 3, 2016, Petitioner filed his Objections [12] to the First R&R,
attaching a declaration signed by his sister, Andria Thomas, and three declarations
signed by long-time friends, Keishuna Turner, Tawanda Martin and Mike Webster.
These individuals did not testify at Petitioner’s trial or at his subsequent
proceedings, including because Petitioner’s attorney declined to call them as
witnesses. The declarations describe Petitioner’s relationship with Ciara Howell
and assert that she often initiated contact with Petitioner. Petitioner alleges that the
declarations “paint a picture of a woman who was excessively jealous of
Petitioner’s various relationships to everyone and everything—who found a way to
use the courts to exercise control over Petitioner through a series of false
allegations.” ([12] at 3).
On December 5, 2016, the Court, in light of Petitioner’s new evidence,
denied Respondent’s First Motion to Dismiss as moot, directed Respondent to file
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a second motion to dismiss, and re-referred the case to the Magistrate Judge.
([13]). On December 30, 2016, Respondent filed his Second Motion to Dismiss,
arguing that Petitioner’s Federal Habeas Petition is untimely and that Petitioner
does not qualify for the “actual innocence” exception to the one year limitations
period. Petitioner did not file a response. See LR 7.1(B), NDGa (“Failure to file a
response shall indicate that there is no opposition to the motion.”). On
April 17, 2017, the Magistrate Judge issued her Second R&R, recommending that
Respondent’s Second Motion to Dismiss be granted and that Petitioner’s Federal
Habeas Petition be dismissed as untimely, because Petitioner “filed his petition
after the one-year limitation period had expired, has not raised a tenable
actual-innocence gateway plea, and is not entitled to an ‘equitable exception’ to the
limitation period.” (Second R&R at 7-8). On April 27, 2017, Petitioner filed his
Objections to the Second 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.
5
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’s Objections assert that his trial, appellate and state habeas
counsel were ineffective for failing to introduce the testimonies contained in the
four declarations now before the Court. ([20] at 1-4). Petitioner did not raise this
argument on direct appeal, in his state habeas petition, in his Federal Habeas
Petition, or in any other filing in this Court, even after the Court granted Petitioner
a second opportunity to develop his actual innocence claim after the First R&R
was issued, and even though the Court warned Petitioner “that he must submit all
evidence in support of his actual innocence claim before the Magistrate Judge
issues a further report and recommendation.” ([13] at 5-6). The Court made it
clear that it “will not consider additional evidence raised after that date.” ([13] at
6). The Court declines to consider Petitioner’s unexhausted and untimely
argument that his counsel were ineffective for failing to introduce the evidence
contained in the four declarations. See Williams v. McNeil, 557 F.3d 1287, 1292
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(11th Cir. 2009) (“[A] district court has discretion to decline to consider a party’s
argument when that argument was not first presented to the magistrate judge.”);
see also Shultz v. Sec’y of U.S. Air Force, 522 F. App’x 503, 506 (11th Cir. 2013)
(“[T]o require a district court to consider evidence not previously presented to the
magistrate judge would effectively nullify the magistrate judge’s consideration of
the matter and would not help to relieve the workload of the district court.”).1
Because Petitioner does not “specify with particularity” any portion of the
Second R&R to which he objects, or the basis for his objections, the Court
conducts a plain error review of the record. ([19] at 1); see Macort v. Prem, Inc.,
208 F. App’x 781, 783 (11th Cir. 2006) (“In order to challenge the findings and
recommendations of the magistrate judge, a party must file written objections
which shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis for
objection. . . . It is critical that the objection be sufficiently specific and not a
general objection to the report.”); Marsden v. Moore, 847 F.2d 1536, 1548
(11th Cir. 1988) (stating that plain error review is appropriate where objections to
1
Even if the Court considered Petitioner’s argument, and even if it was not
unexhausted, the argument still would not entitle him to relief. The evidence in the
four declarations is not significant enough to cure the untimeliness of Petitioner’s
Federal Habeas Petition or to meet the Strickland standard for constitutionally
ineffective assistance. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984).
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an R&R are “[f]rivolous, conclusive, or general,” or do not “specifically identify
those findings objected to” or the basis of the objections).
B.
Analysis
Section 2254 motions are subject to a one-year statute of limitations.
28 U.S.C. § 2244(d)(1). The limitations period generally runs from the date on
which the judgment of conviction becomes final “by the conclusion of direct
review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner’s convictions became final in
April 2013, upon expiration of the ninety-day period in which to seek certiorari
review in the United States Supreme Court. ([7.1] at 4). Petitioner filed his
Federal Habeas Petition on April 20, 2016, approximately three years later. Even
allowing for the seventeen months of statutory tolling triggered by Petitioner’s
state habeas proceedings from March 6, 2014, through October 5, 2015,
Petitioner’s Federal Habeas Petition is untimely absent equitable tolling or a
showing of actual innocence. (Second R&R at 4; [7.1] at 4-5).
Petitioner claims his Federal Habeas Petition is not time-barred because, in
view of the four declarations submitted by his family and friends, he qualifies for
the actual innocence exception to the one year limitations period.
“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may
pass . . . to overcome the time limits imposed by [§ 2244(d)].”
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McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). The Supreme Court has
“caution[ed], however, that tenable actual-innocence gateway pleas are rare
[because a] ‘petitioner does not meet the threshold requirement unless he persuades
the district court that, in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.’” Id. (quoting
Schlup v. Delo, 513 U.S. 298, 329 (1995)). This standard “is demanding and
permits review only in the extraordinary case.” House v. Bell, 547 U.S. 518, 538
(2006) (internal quotations marks and citations omitted).
The Magistrate Judge found that Petitioner does not qualify for the actual
innocence exception because (1) the “newly discovered evidence, i.e., the
information contained in the four affidavits, was available to [Petitioner] before
trial in 2008,” and (2) “the evidence offered in the affidavits does not establish that
no juror, acting reasonably, would have voted to find [Petitioner] guilty beyond a
reasonable doubt if the affiants had been called to testify at trial.” (R&R at 5-7).
The Court finds no plain error in these determinations. This is not “the
extraordinary case” in which the actual innocence exception applies, and
Petitioner’s Federal Habeas Petition is dismissed as time-barred. House, 547 U.S.
at 538; cf. McQuiggin, 133 S. Ct. at 1935-36 (“Unexplained delay in presenting
new evidence bears on the determination whether the petitioner has made the
9
requisite showing” and may “seriously undermine the credibility of the
actual-innocence claim”). The Court also finds no plain error in the Magistrate
Judge’s conclusion that a certificate of appealability should be denied. It is not
reasonably debatable that Petitioner’s Federal Habeas Petition is time-barred. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (stating that a certificate of
appealability should be denied where petitioner’s entitlement to relief is not
reasonably “debatable”).2, 3
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Catherine M. Salinas’
Second Final Report and Recommendation [18] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections [20] are
OVERRULED.
IT IS FURTHER ORDERED that Respondent’s Renewed Motion to
Dismiss Petition as Untimely [14] is GRANTED.
2
The Court would reach the same conclusions expressed in this Order even if
Petitioner had filed proper objections and the Court conducted a de novo review.
3
In view of the Magistrate Judge’s Second R&R, and the dismissal of this
action, the Magistrate Judge’s First R&R is moot.
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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 [1] is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Magistrate Judge Catherine M. Salinas’
Final Report and Recommendation is MOOT [10].
SO ORDERED this 5th day of May, 2017.
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