Clements v. Medlin

Filing 12

ORDER ADOPTING 9 Report and Recommendations of the Magistrate Judge. Respondents' Objections are sustained. Respondents' 4 Motion to Dismiss is granted. Clements's 28 U.S.C. § 2254 petition is dismissed, with prejudice, as it was untimely filed. The Clerk is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 2/17/2015. (ca) Modified on 2/17/2015 (ca).

n the aniteb btatto 3itritt Court
for the boutbern flitrict of georgia
JurunobAd 3sibioton
MICHAEL EDWARD CLEMENTS,
Petitioner,
V.

CV 214-116
JASON MEDLIN, Warden, and
BRIAN OWENS, Commissioner,
Respondents.

.) ,J

After an independent and de novo review of the entire
record, the undersigned rejects the Magistrate Judge's Report
and Recommendation, to which Respondents filed Objections. In
their Objections, Respondents assert that Petitioner Michael
Clements ('Clements") failed to establish the existence of an
extraordinary circumstance which prevented him from filing his
28 U.S.C. § 2254 petition in a timely manner. Respondents
maintain that the delays the Magistrate Judge discussed in his
Report were avoidable with diligence. Respondents also contend
that the explanations given for the delays do not constitute the
type of extreme circumstances necessary to justify the
application of equitable tolling.

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A prisoner must file a petition for a writ of habeas corpus
in federal court within one (1) year. 28 U.S.C. § 2244 (d) (1)
This statute of limitations period shall run from the latest of
four possible dates:
(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.
Id.
Clements's conviction became final at the time of his
completion of the direct review process or when the time for
seeking such review expired. 28 U.S.C. § 2244 (d) (1) (A); Coates
v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000) . Clements was
convicted in the Long County Superior Court on April 19, 2007.
Clements timely filed a motion for new trial, which was denied
on April 21, 2010. Clements filed a direct appeal on May 19,
2010. The Georgia Court of Appeals affirmed Cleinents's
conviction and sentence on May 4, 2011. Clements had a period
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of ten (10) days to file a motion for reconsideration or a
petition for a writ of certiorari.

GA. CT. APP. R.

38. Clements

filed neither of these pleadings. Thus, his conviction became
final on May 16, 2011, as May 14, 2011 fell on Saturday.
CIV. P.

FED. R.

6(a) (1) (C) (if the last day of a period is a Saturday,

Sunday, or legal holiday, the period continues until the next
day that is not a Saturday, Sunday, or legal holiday). Because
Clements's conviction became final on May 16, 2011, he had one
year from that date in which to file a timely federal habeas
petition.

28 U.S.C. § 2244(d) (1).

The applicable statute of limitations is tolled for "[t]he
time during which a properly filed application for State postconviction or other collateral review with respect to the
pertinent judgment or claim is pending[.]" 28 U.S.C. §
2244(d) (2) (emphasis added). "[Aln application is pending as
long as the ordinary state collateral review process is in
continuance—i.e., until the completion of that process. In
other words, until the application has achieved final resolution
through the State's post-conviction procedures, by definition it
remains pending." Carey v. Saffold, 536 U.S. 214, 219-20 (2002)
(internal citations and quotations omitted). A petitioner
should be mindful that "once a deadline has expired, there is
nothing left to toll." Sibley v. Culliver, 377 F.3d 1196, 1204
(11th Cir. 2004); see also Alexander v. Sec'y, Dep't of Corr.,
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S23 F.3d 1291, 1294 (11th Cir. 2008) (a state court motion for
post-conviction relief cannot toll the federal limitations
period if that period has already expired), abrogated on other
grounds by Wall v. Kholi, 562 U.S. 545 (2011)
Clements's conviction became final on May 16, 2011, and he
filed his state habeas corpus petition on April 18, 2012. By
that time, 338 days of the statute of limitations period
applicable to § 2254 petitions had elapsed. Clements's state
habeas petition was denied on June 2, 2014, and he had until
July 2, 2014 to file properly a notice of appeal in the Wheeler
County Superior Court and an application for certificate of
probable cause to appeal with the Georgia Supreme Court.
O.C.G.A. § 9-14-52(b) ("If an unsuccessful petitioner desires to
appeal, he must file a written application for a certificate of
probable cause to appeal with the clerk of the Supreme Court
within 30 days from the entry of the order denying him relief.
The petitioner shall also file within the same period a notice
of appeal with the clerk of the concerned superior court.")
Clements submitted his original application for a
certificate of probable cause to appeal to the Georgia Supreme
Court sometime in mid-June of 2014. The Georgia Supreme Court
notified Clements by letter dated June 25, 2014 that he did not
pay the filing costs or supply a sufficient pauper's affidavit
along with his application. (Doc. No. 8, p. 6). If the
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original filing had been proper, Clements's application for a
certificate of probable cause to appeal would have been timely
pursuant to Georgia Supreme Court Rule 13. This Rule states
that a document submitted by a pro se prisoner "shall be deemed
filed on the date the prisoner delivers the document to prison
officials for forwarding to the Supreme Court Clerk."
CT.

GA. StJPR.

R. 13. However, the Georgia Supreme Court also requires that

costs associated with filing a case with that court be paid at
the time of the filing of the application. "The Clerk is
prohibited from receiving or filing an application . . . unless
the costs have been paid or sufficient evidence of indigency
is filed or contained in the appellate record."

GA. SUPR. CT.

R. 5, ¶ 2.' Because Clements did not supply a sufficient
pauper's affidavit with his original filing, the Georgia Supreme
Court did not deem Clements's application acceptable until it
was filed again on July 11, 2014.

(Doc. No. 5-4) . The Georgia

Supreme Court has noted that "nothing in O.C.G.A. § 9-14-52
excuses compliance by a pro se petitioner with all of the
requirements for invoking this Court's jurisdiction over an
appeal from an adverse order[.]" Fuliwood v. Sivley, 517 S.E.2d
511, 516 (Ga. 1999) . The Georgia Supreme Court also determined
that:

This rule has since changed, but, as the Georgia Supreme Court later
notified Clements, the then-applicable rules required that Clements's
application be considered untimely. (Doc. No. 5-4).
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the requirement that the unsuccessful petitioner
timely apply for a certificate of probable cause is
more than a procedural nicety related to securing
appellate review of adverse judgments. Cases are not
dismissed for failure to comply with procedural
niceties, but only for failing to comply with
jurisdictional prerequisites. Although an application
for a certificate of probable cause was filed in this
case, it was late. There is no legal distinction
between the failure to file any application and the
failure to file a timely application. In either
event, there is a lack of compliance with the
jurisdictional requirement of O.C.G.A. § 9-14-52(b).
An appellant's strict adherence to statutorily
mandated time limits has always been considered an
absolute requirement to confer jurisdiction upon an
appellate court. In habeas corpus cases, the General
Assembly has determined that the unsuccessful
petitioner must timely file both a notice of appeal
and an application for a certificate of probable cause
in order to invoke this Court's jurisdiction. This
Court cannot denigrate the General Assembly's
determination by considering either a timely notice of
appeal or a timely application as a mere procedural
nicety. By filing his notice of appeal timely,
Fullwood may have substantially complied with one of
the elements for obtaining appellate review, but he
failed utterly to satisfy the equally mandatory
requirement that he also file a timely application for
a certificate of probable cause.
Id. at 514 (internal citations omitted)
Because Clements's certificate of probable cause to appeal
was not "properly filed" on or before July 2, 2014, the statute
of limitations period was not tolled while Clements's
application remained pending (until September 18, 2014)
Williams v. Crist, 230 F. App'x 861, 865-66 (11th Cir. 2006)
(citing Pace v. DiGuglielmo, 544 U.S. 408 (2005), and Wade v.
Battle, 379 F.3d 1254, 1260 (11th Cir. 2004), for the

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proposition that state procedural rules govern whether a filing
in the state court is properly filed). Because Clements's
appeal of the denial of his state habeas corpus petition was not
properly filed on or before July 2, 2014, the applicable statute
of limitations period began running once again. Clements did
not place his § 2554 petition in the prison mail system until
July 31, 2014, which is deemed the date he filed his petition.
From July 2, 2014 until July 31, 2014, 29 days elapsed. Adding
these 29 days to the 338 days which had already elapsed before
Clements filed his state habeas corpus petition equals 367 days
and renders Clements's § 2254 petition untimely under the
applicable statute by two (2) days.
Having determined that statutory tolling is not available
to Clements, the Court must now decide whether he is entitled to
equitable tolling of the statute of limitations. A petitioner
seeking equitable tolling must establish "that he has been
pursuing his rights diligently" and "that some extraordinary
circumstance stood in his way" which prevented him from timely
filing his § 2254 petition. Lawrence v. Florida, 549 U.S. 327,
336 (2007) (citing Pace, 544 U.S. at 418). "[T]he untimeliness
of the filing must be the result of circumstances beyond [the
petitioner's] control." Drew v. Dep't of Corr., 297 F.3d 1278,
1286-87 (11th Cir. 2002) . Moreover, "garden variety" claims of
excusable neglect and attorney negligence are not sufficient to
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warrant equitable tolling. Holland v. Florida, 560 U.S. 631,
651-52 (2010) . "The burden of establishing entitlement to this
extraordinary remedy plainly rests with the petitioner." Drew,
297 F.3d at 1286 (citations omitted).
The undersigned notes Clements's assertion that he filed
his notice of appeal on June 18, 2014, in the Wheeler County
Superior Court. Clements also asserts that his application for
a certificate of probable cause to appeal was not docketed until
July 17, 2014, because the clerk of court returned his
application with instructions to resubmit it with either the
filing fee or appropriate forms. (Doc. No. 7,

p. 3). Clements

contends that he did not receive the notification (dated June
25, 2014) from the Georgia Supreme Court until early July.
Clements alleges that he could not obtain the necessary
documents any quicker than he did because he had to have his
pauper's affidavit notarized, he had to obtain his financial
account information from the penal institution, and the July 4th
holiday occurred at that same time. In addition, Clements had
to rely on the prison's mail system.

(Doc. No. 8, p. 2).

Despite these facts, Clements is not entitled to equitable
tolling of the applicable statute of limitations. The Georgia
Supreme Court's notice to Clements is dated June 25, 2014, yet
his amended application, with proper proof of his indigency, was
not filed until mid-July of 2014. The Court recognizes that
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Clements's efforts to comply with the then-applicable Georgia
Supreme Court rules may have been hamstrung by the logistics of
being a prisoner, as well as the occurrence of the Independence
Day holiday. However, delays of this sort, while out of an
inmate's control, do not constitute extraordinary circumstances
entitling an inmate to equitable tolling. Dodd v. United
States, 365 F.3d 1273, 1283 (11th Cir. 2004) (previously-decided
case law suggested "that lockdowns and periods in which a
prisoner is separated from his legal papers are not
'extraordinary circumstances' in which equitable tolling is
appropriate."). Clements waited nearly a year (338 days) to
file his state habeas corpus petition, which left very little
time remaining in the one-year statute of limitations period
applicable here. Miller v. Florida, 307 F. App'x 366, 368 (11th
Cir. 2009) (the filing of a post-conviction motion only two days
before Florida's statute of limitations expired did not
demonstrate the diligence necessary for equitable tolling). The
delays in this case were avoidable with diligence, and several
of the circumstances causing delays were not beyond Clements's
control. Clements could have filed his state habeas corpus
petition earlier than he did, and he could have filed his
application for certificate of probable cause to appeal with the
proper forms in a timely manner. Clements also could have filed
his federal habeas petition two days earlier. Clements did none
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of those things, and he is not entitled to equitable tolling.
Drew, 297 F.3d at 1286 (an inmate must show that an
extraordinary circumstance—one that is beyond his control and
unavoidable even with diligence—prevented the timely filing of a
§ 2254 petition) . Clements fails to meet the burden of
establishing his entitlement to equitable tolling of the statute
of limitations period. Clements's 28 U.S.C. § 2254 petition,
filed on July 31, 2014, was untimely filed.
Respondents' Objections are SUSTAINED.
to Dismiss is GRANTED.

Respondents' Motion

Clements's 28 U.S.C. § 2254 petition is

DISMISSED, with prejudice, as it was untimely filed. The Clerk

of Court is directed to enter the appropriate judgment of
dismissal.

SO ORDERED, this 17T! day of February, 2015.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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