STEPLIGHT v. JOHNSON

Filing 12

ORDER overruling objections and adopting 9 Report and Recommendations. Therefore, this petition filed pursuant to § 2254 is dismissed as untimely. The Court denies a COA in this case, and closes this civil action. Signed by Judge J. Randal Hall on 11/15/2016. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BRANDON STEPLIGHT,
Petitioner,
CV 116-153

v.

ANNETTIA TOBY, 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. 11).
Petitioner provides no information to change the Magistrate Judge's analysis that the petition
filed pursuant to 28 U.S.C. § 2254 is untimely, but the Court offers two comments

concerning Petitioner's objections. First, the Magistrate Judge acknowledged Petitioner had

requested prison officials send the $5.00 filing fee to the Court and proceeded to screen the

case despite the delay over which Petitioner has no control. The recommendation for
dismissal is based on untimeliness, not a failure to pay $5.00.

Second, Petitioner repeats in his objections the arguments initially made concerning

alleged error occurring in his underlying state case in 2010 and 2011, and he states he

pursued state habeas corpus relief "within four years after his September 27, 2010

sentencing." (Doc. no. 11, p. 6.) However, as the Magistrate Judge explained, the one-year
limitations period for filing a federal petition had already expired by the time Petitioner filed

his state habeas petition, meaning that no time period remained to be tolled. (Doc. no. 9, p. 3
(citing Siblev v. CuUiver, 377 F.3d 1196, 1204 (11th Cir. 2004).)

Nor has Petitioner

established he is entitled to equitable tolling or that a fundamental miscarriage of justice has
occurred. (See id at 5-6.)

Accordingly, the Court OVERRULES the objections and ADOPTS the Report and
Recommendation of the Magistrate Judge as its opinion.

Therefore, this petition filed

pursuant to § 2254 is DISMISSED as untimely.

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 inthis case.1 Moreover, because there are no non-

luIf the 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.
2

frivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner
is not entitled to appeal informapauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this /J^day ofNovember, 2016, at Augusta, Georgia.

J. RANDAL HALI

STATES DISTRICT JUDGE
DISTRICT OF GEORGIA