Petty v. Dozier et al

Filing 14

OPINION AND ORDER adopting Magistrate Judge Russell G. Vineyard's Final Report and Recommendation 12 , granting Respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus 8 and denying a certificate of appealability. Signed by Judge William S. Duffey, Jr on 4/24/18. (ddm)

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

1:17-cv-4281-WSD

GREGORY DOZIER and GA DEPT
CORRECTION,
Respondents.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“R&R”) [12]. The R&R considers Petitioner
Darren Petty’s (“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) [1]
and Respondent Gregory Dozier’s (“Respondent”) Motion to Dismiss [8]. The
Magistrate Judge recommended that Respondent’s Motion to Dismiss be granted
and the Petition be dismissed as untimely. The Magistrate Judge recommended
that a Certificate of Appealability (“COA”) not be issued.
I.

BACKGROUND
On January 21, 2014, Petitioner entered a non-negotiated Alford plea to two

counts of theft by receiving stolen property and one count of theft by taking, and
the Superior Court of Gwinnett County imposed a total sentence of five years of

probation. ([9.2]). Petitioner timely filed a motion to withdraw his guilty plea,
([9.3]), which the trial court denied without a hearing, ([9.5]). Petitioner appealed,
and the Georgia Court of Appeals remanded the case to the trial court to hold a
hearing on Petitioner’s motion to withdraw his guilty plea. ([9.7]). The trial court
held a hearing on March 25, 2015, and denied Petitioner’s motion to withdraw his
guilty plea in a written order entered on April 13, 2015. ([9.8]).
Petitioner filed a pro se application for a discretionary appeal, although such
an application was not required, and the Georgia Court of Appeals entered an order
on May 19, 2015, granting Petitioner’s application and directing him to file a
notice of appeal within ten days. ([9.9]; [9.10]). Petitioner never filed a notice of
appeal as directed.
On January 14, 2016, Petitioner filed a pro se habeas corpus petition in the
Superior Court of Gwinnett County. ([9.11]). After a March 18, 2016, evidentiary
hearing, the state habeas court denied the petition in a written order entered on July
11, 2016. ([9.12]). On August 14, 2017, the Georgia Supreme Court dismissed
Petitioner’s appeal because he had failed to file a notice of appeal within thirty
days of the order denying his state habeas petition. ([9.13]).
Petitioner filed this federal habeas petition on October 26, 2017. ([1]). As
grounds for relief, Petitioner argues that he received ineffective assistance of

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appellate counsel and that an officer committed perjury. ([Id.] at 6-7). Respondent
moves to dismiss the petition as untimely. ([8.1] at 3-9). Petitioner responds, in
pertinent part, that he is entitled to statutory tolling through August 14, 2017, when
the Georgia Supreme Court dismissed his appeal from the denial of habeas relief.
([11] at 3-4).
On February 9, 2018, the Magistrate Judge issued his R&R, recommending
that the Petition be denied as untimely, because the one-year limitations period for
Petitioner to file a § 2254 petition expired on December 23, 2016. ([12] at 5). The
Magistrate Judge also found that Petitioner has not alleged extraordinary
circumstances that might excuse the late filing of his federal petition or cited to any
reliable evidence not presented at trial to support a claim of actual innocence.
([Id. at 5-6]). Having found that the untimeliness of the Petition was not debatable,
the Magistrate Judge recommended that a COA not be issued. ([Id.] at 6-8).
Petitioner did not file an objection to the 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.

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Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112
(1983). Where, as here, a party has not asserted objections to the R&R, the Court
conducts a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
B.

Analysis

The Magistrate Judge, after a careful and thorough review of the record,
recommended in his R&R that the Court grant Respondent’s Motion to Dismiss,
dismiss the Petition as untimely, and deny granting a COA.
1.

Untimeliness and Statutory Tolling

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides a one-year statute of limitations to filing a habeas corpus action attacking
a state conviction. 28 U.S.C. § 2244(d)(1). The limitations period runs 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;

(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;

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(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)(A-D). The limitations period is statutorily tolled for “[t]he
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.”
28 U.S.C. § 2244(d)(2).
The Magistrate Judge noted that the one-year limitations period began to run
on May 29, 2015, when the time for filing a direct appeal expired. Bridges v.
Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002). The Magistrate Judge determined
that the limitations period ran for 230 days until it was tolled on January 14, 2016,
when Petitioner filed his state habeas petition, and it remained tolled until
August 10, 2016, when the time for filing a notice of appeal from the denial of
state habeas relief expired. See 28 U.S.C. § 2244(d)(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.”); Cramer v. Sec’y, Dept’ of Corr.,
461 F.3d 1380, 1383-84 (11th Cir. 2006) (per curiam) (holding that an application
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for state postconviction relief remains pending until the time for filing an appeal
expires); O.C.G.A. § 9-14-52(b) (providing thirty-day period for filing notice of
appeal in habeas court). The Magistrate Judge concluded that Petitioner then had
135 days, or until December 23, 2016, to file this § 2254 petition, but he did not
file it until October 26, 2017, roughly ten moths too late.
A review of the record establishes that the Magistrate Judge correctly
calculated the one-year limitations period and correctly determined that statutory
tolling did not apply. The Court finds no plain error in these findings. See Slay,
714 F.2d at 1095.
2.

Equitable Tolling

In addition to statutory tolling, the AEDPA’s limitations period is subject to
equitable tolling, an “extraordinary remedy” which requires a petitioner to
demonstrate both “(1) diligence in his efforts to timely file a habeas petition and
(2) extraordinary and unavoidable circumstances.” Arthur v. Allen, 452 F.3d
1234, 1252 (11th Cir. 2006), modified on other grounds, 459 F.3d 1310 (11th Cir.
2006). See also Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
Petitioner bears “the burden of establishing that equitable tolling [is] warranted.”
See Pugh, 465 F.3d at 1300-01. The Magistrate Judge found that Petitioner has not

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alleged extraordinary circumstances that might excuse the late filing of his petition.
The Court finds no plain error in this finding. See Slay, 714 F.2d at 1095.
The Magistrate Judge noted that Petitioner’s second ground for relief
concerning an officer’s alleged perjury could be construed as an actual innocence
claim. ([12] at 5). A plea of actual innocence, if proved, can overcome the oneyear limitations period for filing a federal habeas corpus action. McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013). “‘To be credible,’ a claim of actual innocence
must be based on reliable evidence not presented at trial.” Calderon v. Thompson,
523 U.S. 538, 559 (1998) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). To
establish his actual innocence, a petitioner must persuade “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.” Schlup, 513 U.S. at 329. “The [actual
innocence] gateway should open only when a petition presents ‘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, 569 U.S. at 401 (citing Schlup, 513 U.S. at 316). The
Magistrate Judge found that Petitioner has failed to meet Schlup’s demanding
standard as he has not cited to any “reliable evidence not presented at trial” to

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support his actual innocence claim. ([12] at 6). The Magistrate thus concluded
that the petition is untimely and due to be dismissed.
The Court finds no plain error in these findings and recommendation. See
Slay, 714 F.2d at 1095.
3.

Certificate of Appealability

“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
When a district court has denied a habeas petition on procedural grounds without
reaching the merits of the underlying constitutional claim, the petitioner must show
that (1) “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” and that (2) “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. at 484 (2000). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to proceed further.” Id.
The Magistrate Judge concluded that because Petitioner cannot show that
reasonable jurists could debate the dismissal of this habeas action as time barred,
Petitioner should be denied a COA. ([12] at 7-8). The Court finds no plain error in

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the Magistrate Judge’s determination that a COA should not be issued. See Slay,
714 F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Russell G. Vineyard’s

Final Report and Recommendation [12] is ADOPTED.
IT IS FURTHER ORDERED that the Respondent’s Motion to Dismiss the
Petition for Writ of Habeas Corpus [8] is GRANTED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

SO ORDERED this 24th day of April, 2018.

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