Harris v. Gramiak

Filing 21

OPINION and ORDER OVERRULING the Petitioner's 18 and 19 Objections, DENYING the Petitioner's 20 Demand for a Jury Trial, ADOPTING the 15 Final Report and Recommendation, and GRANTING the Respondent's 11 Motion to Dismiss. The Petitioner's 1 Petition for Writ of Habeas Corpus is DISMISSED and a Certificate of Appealability is DENIED. Signed by Judge Orinda D. Evans on 10/18/2017. (sap)

~IUl>~~J
~-

0CT 1 9 2017

IN THE UNITED STATES DISTRICT COU
FOR THE NORTHERN DISTRICT OF GE~.~ii\-1
ATLANTA DIVISION
~~~~~--t.Dll~

LABARRION HARRIS,
GDC ID# 1000689140, Case# 747289,
Petitioner,

CIVIL ACTION NO.
1: 17-CV-02553-0DE

v.

JAMES DEAL,
Respondent.

HABEAS CORPUS
28 U.S.C. § 2254
ORDER

This action is before the Court on the Order and Final Report and
Recommendation of Magistrate Judge J. Clay Fuller ("R&R") (Doc. 15),
recommending that Respondent's motion (Doc. 11) to dismiss Petitioner's habeas
corpus petition as time-barred be granted. Petitioner objects. (Doc. 18 ("Objs.")).
He also has filed Amendments to Objections (Doc. 19) and a Demand for Jury Trial
(Doc. 20).
In reviewing a Magistrate Judge's R&R, the district court "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)(l). "Parties
filing objections to a magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive, or general objections need

A072A
(Rev.8/82)

not be considered by the district court." United States v. Schultz, 565 F.3d 1353,
1361 (11th Cir. 2009) (quoting Marsden v. Moore, 84 7 F .2d 1536, 1548 (11th Cir.
1988)) (internal quotation marks omitted). Absent objection, the district court judge
"may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate Liudge]," 28 U.S.C. § 636(b)(l), and "need
only satisfy itself that there is no clear error on the face of the record" in order to
accept the recommendation. Fed. R. Civ. P. 72, advisory committee note, 1983
Addition, Subdivision (b ). In accordance with 28 U.S.C. § 636(b )(1) and Rule 72
of the Federal Rules of Civil Procedure, the Court has conducted a de nova review
of those portions of the R&R to which Petitioner objects and has reviewed the
remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
The R&R provides the following procedural history, to which Petitioner does
not object:
Petitioner entered his guilty plea on November 3, 2011. There is no
record that he filed a direct appeal. On June 25, 2013, Petitioner filed
a De Novo Out Of Time Appeal and a Motion To Reduce/Modify
Sentence. On July 10, 2013, the trial court denied each motion. On
September 22, 2014, in an unpublished opinion, the Court of Appeals
of Georgia denied Petitioner's appeal from the denial of these motions.
Petitioner next filed a Motion To Vacate Void Sentence on March 17,
2

AO 72A
(Rev.8/82)

201 7, which the trial court denied on March 21, 201 7. Petitioner then
executed and filed his federal habeas petition on June 23, 2017.
(R&R at 1-2 (citations omitted) (formatting altered)). Petitioner's federal habeas
claims are based on the rather novel proposition that none of Georgia's criminal
statutes pass constitutional muster. (Id. at 2).
The R&R rejects Petitioner's argument that the start of the limitations period
should be delayed during the "many years" he needed to discover the factual
predicate for his claims, because "his claims are not based on a newly discovered
factual predicate, but rather on Petitioner's idiosyncratic legal analysis of the
Georgia statutory scheme. Nothing about this statutory scheme involves a fact
affecting Petitioner's guilt or innocence, and thus he may not rely on the date he
discovered this alleged factual predicate to trigger the limitations period for his
claims." (Id. at 4-5). The R&R concludes, therefore, that Petitioner missed the oneyear cutoff of December 5, 2012 for filing either a tolling state application for postconviction relief or a federal habeas petition, and thus statutory tolling does not
apply here. (Id. at 6-7). The R&R also concludes that equitable tolling is not
available to Petitioner based on his alleged ignorance of the law and that Petitioner
may not rely on his actual innocence to overcome the time bar because he has not

3

A072A
(Rev.8/82)

offered new reliable evidence of his innocence. (Id. at 7-10). Thus, his "federal
habeas petition, due no later than December 5, 2012, but filed on June 23, 2017, is
untimely by more than four years and six months." (Id. at 10).
Petitioner objects that the state trial court lacked jurisdiction over his alleged
crimes because they are based on unconstitutional Georgia criminal statutes, and that
"jurisdiction can be challenged at any time." (Objs. at 2-3). But a federal district
court may not address the merits of any claim raised in a time-barred federal habeas
petition, including a claim challenging the jurisdiction of the state criminal court.
See Walker v. Alabama, 2:14cv982-WKW, 2015 U.S. Dist. LEXIS 59932, at *8 n.5

(M.D. Ala. Apr. 2) ("Walker is incorrect in arguing that the federal limitation period
does not apply to his § 2254 petition because he presents what he says is a
'jurisdictional' claim .... There is no exception to the limitation period in 28 U.S.C.
§ 2244( d) for such claims seeking to impugn the jurisdiction of the state trial
court."), adopted by 2015 U.S. Dist. LEXIS 59629 (M.D. Ala. May 7, 2015).
Petitioner also objects that there is no controversy established by Respondent's
motion to dismiss, presenting arguments that are appropriate when offered by a
defendant in a civil action, not by a petitioner in a habeas action. (Objs. at 1-2, 4,
13). This objection is thus puzzling and ultimately irrelevant. The timeliness of
4

A072A
(Rev.8/82)

Petitioner's federal habeas petition is the sole matter at issue here, and Respondent
had every right to raise it.
Petitioner next objects that his petition must be considered on the merits
because the writ of habeas corpus cannot be suspended except during rebellion or
invasion (see Objs. at 5-6), but it is well-settled that the dismissal of a federal habeas
petition as time-barred does not violate the Suspension Clause of the United States
Constitution. See Collazo v. United States, 190 F. App'x 759, 761 n.5 (11th Cir.
2006) ("We have previously held that neither the one-year limitations period for
filing an initial habeas corpus petition nor [the] restrictions on successive petitions
amounts to suspension of the writ." (citing Wyzykowski v. Dep 't of Corr., 226 F.3d
1213, 1217 (11th Cir. 2000))).
Finally, Petitioner objects to the R&R's conclusions regardingthe starting date
for the limitations period, the availability of statutory and equitable tolling and his
right to invoke the actual innocence exception to the habeas time-bar- all based on
the state trial court's alleged lack ofjurisdiction to convict and sentence him. (Objs.
at 6-12). These objections are frivolous because Petitioner'sjurisdictional claims are
frivolous, nor do they warrant statutory or equitable tolling or the application of the
actual innocence exception. See, e.g., Walker v. Alabama, 2:14-CV-982-WKW,
5

A072A
(Rev.8/82)

2015 U.S. Dist. LEXIS 72093, at *3 (M.D. Ala. June 4, 2015) ("A claim of actual
innocence is separate and apart from challenges grounded upon legal or procedural
insufficiencies. Because the present motion is grounded entirely upon Mr. Walker's
challenge to the state-court's jurisdiction, his arguments regarding actual innocence
remain without merit and the federal time-bar applies to the present petition." (citing

Bousley v. United States, 523 U.S. 614, 623 (1998) ("It is important to note in this
regard that 'actual innocence' means factual innocence, not mere legal
insufficiency."))).
In his Amendments, Petitioner argues that under FED. R. CIV. P. 60(b )( 4) there
is no time bar for a federal habeas petition that challenges a void judgment, and
therefore his habeas petition cannot be dismissed as untimely. (Doc. 19). This
argument fails. Petitioner misconstrues this Court's jurisdiction, which does not
extend to correcting state court judgments, void or otherwise, under Rule 60(b ).
Petitioner may only prevail in overturning his criminal convictions by filing a timely
federal habeas petition that includes a meritorious claim, and Petitioner has failed on
both counts.

6

A072A
(Rev.8/82)

CONCLUSION

Petitioner's Objections, as amended (Docs. 18, 19), are therefore
OVERRULED. Finding no error, plain or otherwise, in the remainder of the Report,

the Court ADOPTS the Magistrate Judge's Order and Final Report and
Recommendation (Doc. 15) as the Opinion and Order of the Court; GRANTS
Respondent's Motion to Dismiss Petition as Time-Barred (Doc. 11); DISMISSES
Petitioner's federal habeas petition (Doc. 1) as untimely; DENIES Petitioner a
certificate of appealability; and DENIES his Demand for Jury Trial (Doc. 20).

IT IS SO ORDERED this _lQ_ day of October, 2017.

ORINDA D. EV ANS
UNITED STATES DISTRICT JUDGE

7

AO 72A
(Rev.8/82)