Wynn v. Adams

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS 7 of the Magistrate Judge, Overrules all objections, and Dismisses as untimely the petition brought pursuant to 28 U.S.C. § 2254. The Court Denies a COA in this case, Closes this civil action, and Directs the Clerk to enter an appropriate judgment of dismissal. Petitioner is not entitled to appeal in forma pauperis. Signed by Chief Judge J. Randal Hall on 1/10/2022. (ca)

Case 1:21-cv-00162-JRH-BKE Document 10 Filed 01/10/22 Page 1 of 3

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

DONNIE LEE WYNN,

Petitioner,
CV 121-162

V.

BRIAN ADAMS,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. 9.)
Petitioner offers nothing that warrants deviating from the recommendation to dismiss the
petition as untimely. Rather, Petitioner re-hashes the merits of his grounds for relief in an
unsuccessful attempt to show equitable tolling or the fundamental miscarriage of justice
exception should apply to allow consideration of his untimely claims. (See generallv id.)
However, as the Magistrate Judge thoroughly explained, the application of equitable tolling

requires a two-part showing of pursuing rights diligently and an extraordinary circumstance
preventing timely filing. (Doc. no. 7, pp. 4-5 (citing Holland v. Florida. 560 U.S. 631, 649
(2010).).

Likewise, the fundamental miscarriage of justice exception applies in the

exceedingly narrow circumstances where "a constitutional violation has probably resulted in
the conviction of one who is actually innocent." (Id (citing McOuiggin v. Perkins. 569 U.S.
383,392(2013).)

Case 1:21-cv-00162-JRH-BKE Document 10 Filed 01/10/22 Page 2 of 3

Petitioner provides no persuasive arguments to meet his high burden for satisfying
either basis for considering his untimely petition. He instead generally argues his counsel's

alleged ineffective assistance qualifies for the application of equitable tolling and the
Magistrate Judge "overlooked" several instances of"fundamental miscarriages ofjustice" by

failing to recognize alleged legal errors in the state proceedings. (Doc. no. 9, pp. 3-5.)
However, as the Magistrate Judge explained, allegations of legal error do not satisfy the

requirement for new and reliable evidence to show Petitioner did not commit the offenses of
which he was convicted such that no reasonable juror would have found him guilty beyond a

reasonable doubt. Moreover,Petitioner's allegation ofineffective assistance based on a failure
to request a writ of certiorari from the state supreme court after his convictions were affirmed
by the court of appeals does not carry the day. The ineffective assistance argument does
nothing to establish that once the window for seeking a writ of certiorari closed and his

convictions became final. Petitioner diligently pursued his rights and some extraordinary
circumstance stood in his way during the years-long gap before he commenced state habeas

proceedings such that equitable tolling should apply. Accordingly, the Court OVERRULES
all objections, ADOPTS the Report and Recommendation of the Magistrate Judge, and
DISMISSES as untimely the instant petition, brought pursuant to 28 U.S.C. § 2254.

Further, a prisoner seeking relief under § 2254 must obtain a certificate ofappealability
("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 ifthe prisoner makes a "substantial showing ofthe denial ofa constitutional

Case 1:21-cv-00162-JRH-BKE Document 10 Filed 01/10/22 Page 3 of 3

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.' 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 in forma
pauperis. S^ 28 U.S.C. § 1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action DIRECTS the Clerk to enter
an appropriate judgment of dismissal.
SO ORDERED this

day of January, 2022, at Augusta, Georgia.

J. RAr^EM^rFTALL, CMIEE JUDGE
UNITED STATES DISTRICT COURT
lERN DISTRICT OF GEORGIA

'"If 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.