Golden v. Coldwell et al

Filing 24

ORDER granting 22 Motion to Supplement the Record. Signed by Magistrate Judge R. Stan Baker on 12/19/2016. (csr)

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

ALLEN P. GOLDEN,
Petitioner,

CIVIL ACTION NO.: 2:15-cv-178

v.
ANTOINE COLDWELL, Warden,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Allen Golden (“Golden”), who is currently incarcerated at Wilcox State Prison
in Abbeville, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
as amended, challenging his conviction and sentence obtained in the Wayne County, Georgia,
Superior Court. (Docs. 1, 17.) Respondent filed an Answer-Response and a Motion to Dismiss
Grounds 1, 2, and 4 of Golden’s Petition.
(Docs. 13, 15.)

(Docs. 10, 11.)

Golden filed two Responses.

Golden filed a “Motion for Summary Judgment”, (doc. 19), to which

Respondent filed a Response, (doc. 21). Golden also filed a Motion to Supplement the Record,
(doc. 22), and the Court GRANTS that Motion.
For the reasons which follow, I RECOMMEND the Court GRANT Respondent’s
Motion, DISMISS Golden’s Petition, DISMISS as moot Golden’s “Motion for Summary
Judgment”, DIRECT the Clerk of Court to CLOSE this case, and DENY Golden in forma
pauperis status on appeal and a Certificate of Appealability.

BACKGROUND
Golden pleaded guilty to child molestation in the Wayne County Superior Court on April
13, 2004. He received a split sentence of fifteen years— three years to serve in prison and the
remaining twelve years to be served on probation. (Doc. 1, pp. 1–2.) Golden filed several
motions to withdraw his guilty plea, but his motions were dismissed because they were filed after
the expiration of the term during which the judgment was entered. Golden v. State, 615 S.E.2d
617, 617 (Ga. Ct. App. 2005). Golden’s probation was revoked by order dated August 29, 2012,
and the Georgia Court of Appeals denied Golden’s application for discretionary application to
appeal. (Doc. 10, p. 9.)
Golden filed a petition for writ of habeas corpus in the Charlton County Superior Court
on July 13, 2006. (Doc. 12-1, p. 1.) In that petition, Golden contended the case against him
should have been dismissed because there was no reply within seven days.

Golden also

contended the warrant was illegal because, on the face of the warrant, a statute is listed which did
not exist. Golden asserted the indictment conflicted with the warrant. Finally, Golden alleged
his right against double jeopardy was violated. (Id. at pp. 3–4.) The Charlton County court
determined Golden waived these claims by pleading guilty. (Doc. 12-2, p. 3.)
Golden also filed supplements to his petition.

As to his claim that his plea was

involuntary due to his incompetence, the Charlton County court concluded Golden failed to show
he was unable to assist in his own defense. (Id. at p. 4.) The Charlton County court also
concluded that Golden failed to show “overreaching, fraud or perjury” as to his guilty plea. (Id.
at p. 5.) That court found no merit to Golden’s ineffective assistance of counsel claims. (Id. at
pp. 7–8.) The Charlton County court also concluded that Golden agreed to the portion of his
sentence in which he was not allowed contact with his daughter and could not claim his plea was

2

constitutionally infirm. (Id. at p. 10.) The Georgia Supreme Court denied Golden’s application
for probable cause to appeal on January 31, 2008. (Doc. 12-3.)
Golden then filed a motion for out-of-time appeal with the Wayne County Superior
Court, which denied his motion. Golden appealed that denial, and the Georgia Court of Appeals
affirmed that denial on July 17, 2009. Golden v. State, 683 S.E.2d 618 (Ga. Ct. App. 2009).
On September 10, 2010, Golden filed a second petition for writ of habeas corpus in the
Liberty County Superior Court, and his petition was transferred to the Telfair County Superior
Court. (Doc. 12-4.) In that petition, Golden asserted that his guilty plea and resulting conviction
should be vacated based on the transcripts from his plea hearing, which revealed he was not
advised of all of his rights. (Id. at p. 5; Doc. 12-6, p. 2.) Golden amended his petition and
argued, inter alia, that the probationary portion of his sentence should not have been revoked.
After conducting an evidentiary hearing, the Telfair County court denied Golden’s petition, as
amended, on June 3, 2015.

(Doc. 12-10.)

The Georgia Supreme Court denied Golden’s

application for certificate of probable cause to appeal the denial of his second state habeas
petition on November 16, 2015. (Doc. 12-11.)
DISCUSSION
In his Petition, which was executed on December 21, 2015, Golden asserts his guilty plea
conviction violated his right to due process, (Ground 1). (Doc. 1, p. 5.) Golden alleges the trial
court judge did not advise him of his rights under Boykin v. Alabama, 395 U.S. 238 (1969),
(Count 2). In addition, Golden asserts the probation warrant was invalid because it was issued
before the remittitur to the trial court was issued, (Ground 3). Further, Golden contends the
special conditions attached to his sentence render his sentence illegal, (Ground 4). Finally,
Golden states the revocation of his probation is illegal because the polygraph test did not

3

corroborate any facts as true, nor is this a scientifically acceptable test within the State of
Georgia, (Ground 5). (Id. at p. 9.)
Respondent contends Grounds 1, 2, and 4 of Golden’s Petition challenge his 2004 Wayne
County conviction and should be dismissed as untimely filed. (Doc. 10, p. 2.) Respondent states
Ground 3 of Golden’s Petition is “new” and procedurally defaulted under the successive petition
rule. (Id.at pp. 3–4.) Further, Respondent maintains that Ground 5 of Golden’s Petition fails to
state a claim for federal habeas corpus relief.
The Court addresses the parties’ contentions in turn.
I.

Whether Golden Timely Filed Grounds 1, 2, and 4 of his Petition
Because Respondent raises the issue of the timeliness of three grounds of Golden’s

Petition, this Court must look to the applicable statute of limitations periods. A petitioner
seeking to file a federal habeas petition has one year within which to file his petition. 28 U.S.C.
§ 2244(d)(1). The statute of limitations period shall run from the latest of four possible dates:
(A) the date on which the judgment of conviction becomes final by the conclusion
of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application 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 that 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.
Golden’s conviction became final at the time of his completion of the direct review
process or when the time for seeking such review became final. 28 U.S.C. § 2244(d)(1)(A);

4

Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000). Golden was convicted in the Wayne
County Superior Court on April 13, 2004, and he was sentenced on the same date. (Doc. 10,
pp. 8–9.) Golden had a period of thirty (30) days to file a notice of appeal. O.C.G.A. § 5-638(a) (“A notice of appeal shall be filed within 30 days after entry of the appealable decision or
judgment complained of[.]”). Golden did not file an appeal, and thus, his conviction was final on
May 13, 2004. Because Golden’s conviction became final on May 13, 2004, 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 during “[t]he time . . . 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); Taylor v. Williams, 528 F.3d 847, 849
(11th Cir. 2008). “[A]n 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
omitted). A petitioner should be mindful that “once a deadline has expired, there is nothing left
to toll. A state court filing after the federal habeas deadline does not revive” the statute of
limitations period applicable to Section 2254 petitions. Sibley v. Culliver, 377 F.3d 1196, 1204
(11th Cir. 2004); see also Alexander v. Sec’y, Dep’t of Corr., 523 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).
As noted above, Golden’s conviction became final on May 13, 2004. He had one year
from that date, or until May 13, 2005, to file a 28 U.S.C. § 2254 petition for writ of habeas

5

corpus or a properly filed application for State post-conviction or other collateral review. 1
Golden filed his first state habeas corpus petition on July 13, 2006, more than two years after his
conviction became final. By that time, the statute of limitations period applicable to Section
2254 petitions had expired. Consequently, the filing of his state habeas corpus petition did not
toll the federal statute of limitations. On their face, Grounds 1, 2, and 4 of Golden’s Petition
were filed untimely. However, it must now be determined whether the applicable statute of
limitations period was equitably tolled.
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 Section 2254 petition. Lawrence v. Florida, 549 U.S. 327, 335 (2007)
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling is “an extraordinary
remedy that must be applied sparingly[,]” and a petitioner must present a “truly extreme case.”
Holland v. Florida, 539 F.3d 1334, 1338 (11th Cir. 2008), overruled on other grounds by
Holland v. Florida, 560 U.S. 631 (2010). “’The burden of establishing entitlement to this
extraordinary remedy plainly rests with the petitioner.’” Id. (quoting Drew v. Dep’t of Corr., 297
F.3d 1278, 1286 (11th Cir. 2002)).

1

Golden’s pro se post-conviction motions filed with the Wayne County Superior Court were not
“properly filed” within the meaning of Section 2244(d)(2) and could not serve to toll the applicable
statute of limitations period. See Golden v. State, 615 S.E.2d 769, 770 (Ga. Ct. App. 2005) (“[T]he
general rule is that after expiration of the term at which the judgment was entered a court cannot set aside
or alter its final judgment unless the proceeding for that purpose was begun during the term. The terms of
court in the Wayne County Superior Court of the Brunswick Judicial Circuit commence on the third and
fourth Mondays in April and November. Therefore, Golden was sentenced on April 13 in the November
term and he did not file his motions until after the April term commenced. Consequently, the only means
available to Golden to withdraw his guilty plea is through habeas corpus proceedings. Further, he was not
authorized to file a motion for a new trial because ‘[o]ne who has entered a plea of guilty cannot move for
a new trial, as there was no trial.’”) (internal citations omitted).

6

Golden sets forth no assertion that he is entitled to equitable tolling of the statute of
limitations. To be sure, Golden offers no reason why he waited more than two years after his
state court conviction was final to file a state habeas corpus petition. In fact, Golden utterly
failed to even respond to Respondent’s contention that Grounds 1, 2, and 4 of his Section 2254
Petition were filed untimely and that he is not entitled to equitable tolling. Accordingly, Golden
is not entitled to equitable tolling.
For all of these reasons, the Court should GRANT Respondent’s Motion to Dismiss and
DISMISS Grounds 1, 2, and 4 of Golden’s Petition as untimely filed.
II.

Whether Ground 3 of Golden’s Petition is Barred by the Successive Petition Rule
Respondent contends Golden’s assertion that his probation revocation warrant was

invalid because it was issued before the remittitur was returned to the trial court is a new ground
and is procedurally defaulted under Georgia law. (Doc. 11-1, p. 9.)
Before bringing a Section 2254 habeas petition in federal court, a petitioner must exhaust
all state court remedies that are available for challenging his conviction, either on direct appeal
or in a state post-conviction motion. 28 U.S.C. §§ 2254(b) & (c). When a federal habeas
petition raises a claim that has not been exhausted in state proceedings, the district court
ordinarily must either dismiss the petition, “leaving the prisoner with the choice of returning to
state court to exhaust his claims or of amending or resubmitting the habeas petition to present
only exhausted claims to the district court[,]” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,
1351 (11th Cir. 2004) (internal citation and punctuation omitted), or grant a stay and abeyance to
allow the petitioner to exhaust the unexhausted claim. See Rhines v. Weber, 544 U.S. 269, 277–
79 (2005). “[W]hen it is obvious that the unexhausted claims would be procedurally barred in
state court due to a state-law procedural default, [the district court] can forego the needless

7

‘judicial ping-pong’ and just treat those claims now barred by state law as no basis for federal
habeas relief.” Kelley, 377 F.3d at 1351 (punctuation in original). The unexhausted claims
should be treated as if procedurally defaulted. A petition is “due to be denied with prejudice [if]
there are no state remedies left to exhaust and all of the claims are either meritless or
procedurally defaulted[.]” Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).
The successive petition rule is found in O.C.G.A. § 9-14-51, which provides:
All grounds for relief claimed by a petitioner for a writ of habeas corpus shall be
raised by a petitioner in his original or amended petition. Any grounds not so
raised are waived unless the Constitution of the United States or of this state
otherwise requires or unless any judge to whom the petition is assigned, on
considering a subsequent petition, finds grounds for relief asserted therein which
could not reasonably have been raised in the original or amended petition.
This statute “can and should be enforced in federal habeas proceedings against claims never
presented in state court, unless there is some indication that a state court judge would find the
claims in question could not reasonably have been raised in the original or amended [state]
petition.” Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007) (alteration in original).
“A federal court may consider the merits of a procedurally defaulted claim only if the
petitioner can show both ‘cause’ for the default and ‘prejudice’ from a violation of his
constitutional right.” Hittson v. GDCP Warden, 759 F.3d 1210, 1260 (11th Cir. 2014) (quoting
Wainwright v. Sykes, 433 U.S. 72, 84–85 (1977)).

To establish cause, a petitioner must

ordinarily “demonstrate ‘some objective factor external to the defense’ that impeded his effort to
raise the claim properly in state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).
Golden did not raise this contention in either of his state habeas corpus petitions, though
he could have. Thus, this Court can review the relative merits of his claim only upon a showing
of cause for Golden’s failure and resulting prejudice. However, Golden offers no reason why he

8

did not raise this issue before the state courts, nor does he offer an example of how his default
resulted in the prejudice to a constitutional right. Accordingly, the Court should DISMISS
Ground 3 of Golden’s Petition.
III.

Whether Ground 5 Sets Forth a Claim for Federal Habeas Relief
Golden objects to the use of polygraph examination results during his probation

revocation proceedings, as such results are scientifically outlawed in the State of Georgia.
(Doc. 17, p. 4.) Respondent contends Golden fails to state a claim for federal habeas relief, as
Golden does not set forth a constitutional violation. (Doc. 11-1, p. 12.)
Section 2254 of Title 28, United States Code, provides “that a federal court may issue a
writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.” Swarthout v. Cooke, 562 U.S. 216, 218
(2011) (internal citation omitted). “‘[F]ederal habeas corpus relief does not lie for errors of state
law.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67
(1991)).

“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”

Id. (internal citation omitted).

Rather, “it is only

noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral
attack in the federal courts.” Id.
Golden objects to the use of a polygraph examination result in his probation revocation
proceeding, which he contends violates Georgia law. Golden fails to allege that the admission of
the polygraph examination resulted in a violation of his federal constitutional rights or that the
admission of this evidence was anything more than an alleged state law error. Consequently,
Golden fails to set forth a viable Section 2254 claim, and the Court should DISMISS Ground 5
of Golden’s Petition.

9

IV.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Golden leave to appeal in forma pauperis and deny him a

Certificate of Appealability (“COA”). Though Golden has, of course, not yet filed a notice of
appeal, it would be appropriate to address these issues in the Court’s order of dismissal.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the district court must issue or
deny a certificate of appealability when it issues a final order adverse to the applicant.”
(emphasis supplied); see also Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a Certificate of Appealability is issued.

A Certificate of

Appealability may issue only if the applicant makes a substantial showing of a denial of a

10

constitutional right. The decision to issue a Certificate of Appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a Certificate of Appealability, a petitioner must
show “that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Golden’s Petition and Respondent’s Motion and applying
the Certificate of Appealability standards set forth above, there are no discernable issues worthy
of a certificate of appeal; therefore, the Court should DENY the issuance of a Certificate of
Appealability. Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal
would not be taken in good faith. Thus, the Court should likewise DENY Golden in forma
pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 11), DISMISS Golden’s Petition for Writ of Habeas Corpus, filed pursuant to
28 U.S.C. § 2254, (doc. 1), DISMISS as moot Golden’s “Motion for Summary Judgment”, and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Golden leave to proceed in forma pauperis on appeal and a Certificate of Appealability.

11

The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Golden and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

12