Williams v. Tatum
Filing
20
OPINION AND ORDER adopting Magistrate Judge J. Clay Fuller's Final Report and Recommendation 17 , overruling Petitioner's Objections 19 , granting Respondent's Motion to Dismiss Petition as Untimely 11 , dismissing this action and denying a COA. Signed by Judge William S. Duffey, Jr on 5/1/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FLOYD W. WILLIAMS, II,
Petitioner,
v.
1:16-cv-3479-WSD
WARDEN CLAY TATUM,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation [17] (“R&R”), recommending that Respondent
Warden Clay Tatum’s (“Respondent”) Motion to Dismiss Petition as
Untimely [11] (“Motion to Dismiss”) be granted, that Petitioner Floyd W.
Williams, II’s (“Petitioner”) Application for Habeas Corpus Under § 28 U.S.C.
2254 [1] (“Federal Habeas Petition”) be dismissed as time-barred, and that a
certificate of appealability be denied. Also before the Court are Petitioner’s
Objections [19] to the R&R.
I.
BACKGROUND
On August 26, 2011, in the Superior Court of Clayton County, Petitioner
pleaded guilty to two counts of murder, one count of residential burglary, one
count of possession of a firearm by a felon, and one count of aggravated assault.
([12.1] at 1). Petitioner was sentenced to life in prison, and did not file a direct
appeal. ([12.1] at 1-2). Petitioner claims that, on December 13, 2011, he filed, in
the Superior Court of Clayton County, a “motion for sentence modification,”
which was denied on December 14, 2011. ([1] at 3; [11.1] at 1; [19] at 2).1
On February 12, 2013, Petitioner filed his state habeas petition, which was
denied on April 16, 2015. ([12.2]; [12.3]). On September 8, 2015, the Georgia
Supreme Court denied Petitioner’s application for a certificate of probable cause to
appeal. ([12.4]; [11.1] at 1). On September 6, 2016, almost one year later,
Petitioner filed his Federal Habeas Petition. On October 20, 2016, Respondent
filed his Motion to Dismiss, arguing that Petitioner’s Federal Habeas Petition was
time-barred. On February 28, 2017, the Magistrate Judge issued his R&R,
recommending that Respondent’s Motion to Dismiss be granted. On
March 9, 2017, Petitioner filed his Objections to the R&R.
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Petitioner has not provided any evidence of his “motion for sentence
modification.” Petitioner also, in his Objections, alleges that he “filed several
motions for the defense of himself in other legal matters in the State of Virginia
[and the] District Court for the District of Maryland.” ([19] at 2). Petitioner did
not include these allegations in his Federal Habeas Petition, and does not provide
meaningful information about—or evidence of—the “other legal matters” to which
he briefly refers in his Objections.
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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). In view of Petitioner’s
Objections, the Court conducts a de novo review of the record.
B.
Analysis
1.
Whether Petitioner’s Federal Habeas Petition is Untimely
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
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which the judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).2 If
the petitioner does not file a direct appeal, the judgment of conviction becomes
final when the time to file an appeal expires. 28 U.S.C. § 2244(d)(1)(A). 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, Florida
Dep’t of Corr., 750 F.3d 1198, 1207 (11th Cir. 2014). “To establish
diligence, . . . [petitioner] must present evidence showing reasonable efforts to
timely file his action.” Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir.
2004). “[T]he burden of proving circumstances that justify the application of the
equitable tolling doctrine rests squarely on the petitioner,” and “the allegations
supporting equitable tolling must be specific and not conclusory.” Lugo, 750 F.3d
at 1209. “[D]istrict courts are not required to mine the record, prospecting for facts
that the habeas petitioner overlooked and could have, but did not, bring to the
surface.” Id. The one-year statute of limitations also may be overcome by a
2
This is subject to limited exceptions not applicable in this case. See
28 U.S.C. §§ 2244(d)(1)(B)-(D) (providing that the limitations period may begin
on a different date where unlawful government action impeded the filing of the
§ 2254 motion, petitioner asserts a right newly recognized by the United States
Supreme Court and made retroactively applicable to cases on collateral review, or
petitioner discovered facts supporting the claim that could not have been
discovered earlier with due diligence).
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showing of actual innocence. The petitioner, to trigger this exception, must
“present[] evidence of innocence so strong that a court cannot have confidence in
the outcome of the trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1928,
1936 (2013).
Under Georgia law, Petitioner was required to file his direct appeal, if any,
“within 30 days after entry of the appealable decision or judgment complained of.”
O.C.G.A. § 5-6-38(a). Because Petitioner did not file an appeal, his judgment of
conviction became final, and the limitations period began, on September 27, 2011,
thirty days after judgment was entered on August 26, 2011. Petitioner filed his
state habeas petition on February 12, 2013, more than a year later. An additional
363 days elapsed between the date on which the Georgia Supreme Court denied
Petitioner’s application for a probable cause certificate (September 8, 2015) and
the date on which he filed his Federal Habeas Petition (September 6, 2016).
Petitioner has not established actual innocence or equitable tolling, and his Federal
Habeas Petition is required to be dismissed as untimely.3
3
Although Petitioner states he has been on lockdown “periodically,” this does
not cure the untimeliness of his Federal Habeas Petition, including because
Petitioner fails to identify the specific dates or duration of his alleged lockdown.
([16] at 1; [19] at 1-2; R&R at 16-17). Petitioner’s assertion that he “has been
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2.
Certificate of Appealability
A federal habeas “applicant cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability under 28 U.S.C.
§ 2253(c).” Fed. R. App. P. 22(b)(1). “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing Section 2254 Cases in the United States District Courts, Rule
11(a). A court may issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional
right “includes showing that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
restricted access to the law library” does not entitle him to equitable tolling, and his
alleged mistaken belief that he had four years in which to file his Federal Habeas
Petition also is insufficient. ([19] at 1-4). See Knight v. Sec., Dep't of Corr., No.
5:09-cv-533, 2011 WL 3349042, at *4 (M.D. Fla. Aug. 3, 2011) (“[N]either an
alleged inadequate prison law library, nor limited access to the library establishes
extraordinary circumstances warranting an equitable tolling of the limitation
period.”); Lewis v. Howerton, No. 1:07-cv-2803, 2012 WL 4514044, at *19 (N.D.
Ga. Sept. 30, 2012) (“[A] mistake of law by petitioner or those inmates helping
him is not a basis for equitable tolling.”).
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When the district court denies a habeas petition on procedural
grounds . . . , a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Id.
The Magistrate Judge found that Petitioner is not entitled to a certificate of
appealability because it is not debatable that Petitioner’s Federal Habeas Petition is
time-barred. The Court agrees, and a certificate of appealability is denied.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge J. Clay Fuller’s Final
Report and Recommendation [17] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections [19] are
OVERRULED.
IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss
Petition as Untimely [11] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
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SO ORDERED this 1st day of May, 2017.
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