Glenn v. Danforth

Filing 29

ORDER granting 13 Motion to Dismiss; denying 17 Motion for Default; adopting 24 Report and Recommendations; overruling the objections; dismissing the instant petition brought pursuant to 28 U.S.C. § 2254; and denying a COA. The Court closes this civil action and directs the Clerk to enter a final judgment in favor of Respondent. Signed by Judge J. Randal Hall on 08/06/2014. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

EARLY GLENN,

Petitioner,
CV 113-118

v.

WILLIAM DANFORTH, Warden,

Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 28).'
The Magistrate Judge recommended dismissal of the petition as time-barred because

Petitioner's one-year statute of limitations expired before he filed his state habeas corpus
petition. (See doc. no. 24.)

Petitioner's objections are mainly a reiteration of contentions previously made
and rejected by the Magistrate Judge. Two points, however, warrant further comment.

Petitioner states that the Magistrate Judge failed to address two issues. Petitioner first

asserts the Magistrate Judge did not address his argument that he had no direct appeal

because attorney E. Ronald Garnett, who initially represented Petitioner on direct appeal,
was disbarred while his direct appeal was pending. (Doc. no. 28, pp. 1-4.) He argues

that because he could not be represented by a disbarred attorney, his direct appeal was

'Petitioner requested, and was granted, an extension of time in which to object to
the Report and Recommendation. (Doc. nos. 26,27.)

"null and void," and therefore, the statute of limitations for his federal habeas corpus
action never began to run. Relatedly, Petitioner asserts that attorney Peter Flanagan did
not file an appeal brief on his behalf. (Id at 5.)
The Magistrate Judge addressed Petitioner's assertions. Citing documents in the

record from Mr. Garnett, Mr. Flanagan, and the Georgia Supreme Court, the Magistrate

Judge stated that Petitioner appealed his convictions to the Georgia Supreme Court and
was initially represented by Mr. Garnett and then Mr. Flanagan. (Doc. no. 24, p. 2.) The
Georgia Supreme Court affirmed Petitioner's convictions on April 26, 2005.

(Id.)

Indeed, Petitioner's appeal was stricken and remanded for appointment of new counsel
after Mr. Garnett was disbarred on September 27, 2004 for conduct unrelated to
Petitioner's case, Mr. Flanagan was appointed as Petitioner's counsel on November 16,
2004, and the case was redocketed in the Georgia Supreme Court on November 24,2004.
(See doc. no. 19-3, pp. 18-25.) Moreover, the Georgia Supreme Court's opinion reflects
that Mr. Flanagan represented Petitioner on appeal when it addressed Petitioner's
assertions of error. Glenn v. State. 612 S.E.2d 478. 479 (2005). Thus, as the Magistrate

Judge correctly found, Mr. Flanagan represented Petitioner on appeal and was counsel of
record when the Supreme Court affirmed his convictions and, therefore, his direct appeal

concluded. (See doc. no. 24, pp. 4-8.) Thereafter, the one-year statute of limitations to
file a federal habeas corpus petition expired before Petitioner filed his state habeas corpus

petition on June 6, 2008, making the current petition untimely. (See doc. no. 24, pp. 4-8.)

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the

Report and Recommendation of the Magistrate Judge as its opinion, DENIES
2

Petitioner's motion for default, GRANTS Respondent's motion to dismiss, and
DISMISSES the instant petition brought pursuant to 28 U.S.C. § 2254.
A prisoner seeking relief under § 2254 must obtain a certificate of appealability

("COA") before appealing the denial of his application for a writ of habeas corpus. This
Court "must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant." Rule 11(a) to the Rules Governing Section 2254 Proceedings.
This Court should grant a COA only if the prisoner makes a "substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the
Report and Recommendation, and in consideration of the standards enunciated in Slack v.

McDaniel. 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite

showing. Accordingly, the Court DENIES a COA in this case.2 Moreover, because there
are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith
and Petitioner is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action, and DIRECTS the

Clerk to enter final judgment in favor of Respondent.

SO ORDERED this j£> day of August, 2014, at Augusta, Georgia.

HONORABLE JyRANDAL HALL

JJNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

2"Ifthe court denies a certificate, the parties may not appeal the denial but may
seek a certificate from the court of appeals under Federal Rule of Appellate Procedure
22." Rule 11(a) to the Rules Governing Section 2254 Proceedings.
3