Petty v. Dozier
Filing
14
OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyard's Final Report and Recommendation 11 , overruling Petitioner's Objections to the R&R 13 , granting Respondent Gregory C. Dozier's Motion to Dismiss as Untimely 9 and dismissing this action. It is further ordered that a certificate of appealability is denied. Signed by Judge William S. Duffey, Jr on 12/7/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DARREN PETTY,
Petitioner,
v.
1:17-cv-3029-WSD
GREGORY C. DOZIER,
Commissioner of the Georgia
Department of Corrections,
Respondent.
OPINION AND ORDER
This matter is before the Court on Respondent Gregory C. Dozier’s
(“Respondent”) Motion to Dismiss as Untimely [9] and Magistrate Judge Russell
G. Vineyard’s Final Report and Recommendation [11] (the “Final R&R”). The
Final R&R recommends the Court grant Respondent’s unopposed Motion to
Dismiss, dismiss Darren Petty’s (“Petitioner”) 28 U.S.C. § 2254 Petition for Writ
of Habeas Corpus [1] (the “Petition”) as time-barred, and deny the Certificate of
Appealability. Also before the Court are Petitioner’s Objections to the Final R&R
[13].
I.
BACKGROUND
A.
Facts1
Petitioner, who is currently on probation, has filed this Petition to challenge
his April 14, 2011, convictions in the Superior Court of DeKalb County. On April
14, 2011, Petitioner entered a guilty plea under North Carolina v. Alford, 400 U.S.
25 (1970), to four counts of theft by receiving stolen property and received a
concurrent sentence of fifteen years on probation for each count. ([10.2]).
Petitioner did not then file a notice of appeal, but more than two years and
nine months later, on January 14, 2014, he “purportedly filed a motion to withdraw
his plea and vacate his sentence.” Petty v. State, No. A14D0459 (Ga. Ct. App.
Aug. 8, 2014). ([10.3]). Petitioner subsequently filed an application for a
discretionary appeal, which the Georgia Court of Appeals dismissed because he
did not include a copy of the order he sought to appeal. (Id.).
On June 30, 2014, more than three years after his sentence was entered,
Petitioner filed a notice of appeal from his sentence, which the Georgia Court of
Appeals dismissed as untimely. Petty v. State, No. A15A0073 (Ga. Ct. App. Sept.
10, 2014). ([10.4]). Petitioner then filed a second notice of appeal that also was
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).
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dismissed as untimely. Petty v. State, No. A15A0616 (Ga. Ct. App. Dec. 16,
2014). ([10.5]). The Georgia Supreme Court denied certiorari on April 20, 2015.
Petty v. State, No. S15C0674 (Ga. Apr. 20, 2015). The Georgia Supreme Court
dismissed a second certiorari petition as untimely on April 17, 2017, and denied
reconsideration on May 15, 2017. Petty v. State, No. S17C0408 (Ga. Apr. 17,
2017).
On August 29, 2014, Petitioner filed a pro se habeas corpus petition in the
Superior Court of DeKalb County. ([10.6]). On July 21, 2015, the state habeas
court dismissed the petition without prejudice because Petitioner had not served the
respondents as ordered by the court. ([1] at 15). On that same day, Petitioner filed
a second pro se habeas corpus petition, [10.7], which the state habeas court
dismissed as untimely, [10.8]. The Georgia Supreme Court dismissed Petitioner’s
application for a certificate of probable cause to appeal because he had not timely
filed a notice of appeal in the Superior Court of DeKalb County. ([1] at 17).
Petitioner filed the Petition on July 19, 2017. ([1] at 14). As
grounds for relief, Petitioner asserts that: (1) Officer K. B. Lewis gave false
testimony in support of the warrant; and (2) the prosecuting attorney failed to “act
or help protect [Petitioner’s] rights.” (Id. at 5-7).
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On September, 25, 2017, Respondent moved to dismiss the petition as
untimely. ([9.1] at 3-8). Petitioner did not respond to Respondent’s motion to
dismiss. (See [11] at 1). On November 2, 2017, the Magistrate Judge issued his
Final R&R, recommending the Court grant Respondent’s unopposed Motion to
Dismiss, dismiss this action as time-barred, and deny the Certificate of
Appealability. ([11]). The Magistrate Judge reasoned that there was no basis to
toll Section 2254’s one-year limitations period. (Id. at 4).
On November 20, 2017, Petitioner filed his “Motion of Filing Objection and
Motion to Grant Certificate of Appealability” (the “Objections”). ([13]). In the
Objections, Petitioner appears to assert that he did not respond to the motion to
dismiss because of “mail box thefts and home burglary.” ([13] at 1). In objecting
to dismissal, he argues that he was incarcerated during the statutory period and
therefore “had no home or permanent address which prevented plaintiff who is not
a [sic] attorney time not [sic] environment to study the law and seek or discover all
legal remedies to correct perjury information of Officer Lewis.” (Id. at 1-2).
Next, Petitioner argues that the statutory period should have been tolled by
the “Post Conviction pending investigation” by the Dekalb County District
Attorney’s Office. For support, Petitioner includes a letter from the Public
Integrity Unit of the District Attorney’s Office, dated September 28, 2015,
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notifying Petitioner that there was sufficient information to initiate a preliminary
investigation regarding Police Officer K. B. Lewis. (Id. at 4).
II.
DISCUSSION
A.
Standard of Review of a Magistrate Judge’s R&R
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 no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Because Petitioner objects to
the R&R, the Court conducts its de novo review.
B.
Timeliness of the Habeas Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub.L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year statute of
limitations for habeas corpus petitions. That period runs from the latest of the
following:
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(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.
28 U.S.C. § 2244(d)(1). AEDPA allows for tolling of the time period curing
certain state court proceedings. “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)(2).
In this case, there is no claim that the circumstances set forth in
subparagraphs (B) and (C) above apply. Respondent argues that the Petition is
untimely under subsection (A) because Petitioner did not file the Petition within
one year of the date upon which his conviction became final. ([9.1] at 3). In his
Objections, Petitioner appears to argue, apparently under subparagraph (D), that
evidence of perjury by Officer Lewis, and the alleged investigation by the District
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Attorney’s Office, should toll the statute. ([13] at 2). He further argues that there
are several still-pending post-conviction proceedings that toll the limitations
period. (Id.).
1.
Finality of Petitioner’s Conviction
Petitioner’s convictions were “final” on Monday, May 16, 2011, when the
time for filing a notice of appeal expired. The one-year limitations period began to
run on that date because Petitioner did not file a notice of appeal within 30 days
after entering his Alford plea on April 14, 2011. See O. C. G. A. § 5-6-38(a)
(notice of appeal must be filed within thirty days after entry of judgment); Bridges
v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (holding that prisoner’s
conviction became final under § 2244(d)(1)(A) when the time for filing a direct
appeal expired); Ga. Ct. App. R. 3 (“When a filing deadline falls on a Saturday, . . .
the deadline is extended to the next business day.”).
Petitioner’s unsuccessful attempts to directly appeal his sentence years after
it was entered does not affect this calculation. Cf. Jimenez v. Quarterman, 555
U.S. 113, 121 (2009) (holding that “where a state court grants a criminal defendant
the right to file an out-of-time direct appeal during state collateral review, but
before the defendant has first sought federal habeas relief, his judgment is not yet
‘final’ for purposes of § 2244(d)(1)(A).”); see also Davis v. Crews, No. 4:12cv581-
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WS/CAS, 2013 WL 491976, at *2 (N. D. Fla. Jan. 11, 2013) (finding that
unsuccessful motion for leave to file a belated appeal did not alter the date of
finality), report and recommendation adopted, 2013 WL 500247, at *1 (N.D. Fla.
Feb. 11, 2013). Accordingly, absent tolling, petitioner had until May 16, 2012, to
file his § 2254 petition.
In the Objections, Petitioner argues that the statute of limitations should be
tolled because of “several post conviction relief [sic] that is pending . . . that has
not answered [sic] since February 10, 2014.” ([13] at 2). Statutory tolling applies
when “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2). Neither Petitioner’s “motion to withdraw his plea and vacate his
sentence” nor his subsequent state habeas petitions tolled the limitations period
because petitioner filed them after the limitations period had expired. See Sibley v.
Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004) (“A state court filing after the
federal habeas filing deadline does not revive it.”) (citation omitted).
2.
Tolling Due to Investigation of Officer Lewis
Petitioner provides a letter from the DeKalb County District Attorney’s
Office, dated September 28, 2015, in which the District Attorney informs
Petitioner that the Public Integrity Unit had reviewed Petitioner’s complaint and
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found sufficient information to initiate a preliminary investigation against Officer
K.B. Lewis. ([13] at 4).
Petitioner argues that this is a post-conviction pending investigation that
should toll the statute. This argument, if cognizable, appears to fall under
subparagraph (D), which states that the statutory period may begin on “the date on
which the factual predicate of the claim or claims presented could have been
discovered.” 28 U.S.C. § 2254(d)(1)(D). The Petitioner does not, however,
provide any evidence that the factual predicate of the alleged perjury was unknown
to him. To the contrary, the letter provides evidence that the factual predicate
underlying his Petition was known to him. It acknowledges that Petitioner “raised
similar issues with [the District Attorney’s Office] in a pending habeas corpus
petition.” ([13] at 4). This is likely a reference to Petitioner’s state habeas corpus
petition in the Superior Court of DeKalb County that was filed on August 29,
2014, in which Petitioner first raised issues related to Officer Lewis’s testimony.
([10.6]). Even if Petitioner did not discover the factual predicate that is the basis of
the Petition—Officer Lewis’s alleged perjury—until the date of filing his state
court petition, the Petition is still time barred because it was filed almost three
years later, on July 19, 2017. ([1] at 14). Thus, the letter discussed in the
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Objections does not provide any basis for Petitioner’s discovery of new
information.
C.
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)).
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.
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Slack, 529 U.S. at 484.
The Magistrate Judge found that a COA should be denied because it is
not debatable that Petitioner fails to assert claims warranting federal habeas
relief. ([11] at 6-8). The Court agrees, and a COA is denied.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation [11] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections to the R&R [13]
are OVERRULRED.
IT IS FURTHER ORDERED that Respondent Gregory C. Dozier’s
Motion to Dismiss as Untimely [9] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
SO ORDERED this 7th day of December, 2017.
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