Clark v. Sheffield

Filing 8

ORDER vacating 5 Report and Recommendations and directing Respondent to answer in writing the allegations of the petition within sixty days of the date of this Order. Signed by Magistrate Judge Brian K. Epps on 12/13/2016. (maa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
ARTHUR LAWTON CLARK,

)
)
Petitioner,
)
)
v.
)
)
LYNN SHEFFIELD, Sheriff, Dodge County, )
)
Respondent.
)
_________

CV 316-068

ORDER
_________
Petitioner filed the above-captioned petition pursuant to 28 U.S.C. § 2254. Upon
initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court
recommended dismissal of the petition as time-barred. (Doc. no. 5.) The Court found
Petitioner’s state conviction became final on July 17, 2013, and Petitioner waited more than
one year before filing his state habeas petition on August 5, 2014, resulting in expiration of
AEDPA’s one-year limitations period before Petitioner filed the present petition on August
19, 2016. (Doc. no. 5, p. 3.)
In his objections to the Report and Recommendation, Petitioner argues his conviction
was not final for AEDPA purposes until revocation of his first offender status in May 2014.
(Doc. no. 7, p. 2.) Accordingly, Petitioner argues his limitations period did not begin to run
until May 2014, was tolled by the filing of his state habeas petition in August 2014, and his
federal petition is therefore timely. (Id.) Petitioner also argues his motion to correct void
and illegal sentence, filed on July 9, 2014, would toll the limitations period. (Id. at 3.)

Finally, Petitioner argues that even if the statute of limitations began to run from the time of
his guilty plea under the Georgia First Offender Act, he is actually innocent and should be
excused from the limitations bar.
In light of Petitioner’s objections, it does not plainly appear from the petition that
petitioner is not entitled to relief. The Court believes further factual and legal development is
needed and VACATES the Report and Recommendation. Accordingly, process shall issue.
The Court hereby ORDERS Respondent to answer in writing the allegations of the
petition within sixty days of the date of this Order. Pursuant to Rule 5, Rules Governing
Section 2254 Cases in the United States District Courts, the answer shall include the
following:
1.

certified copy of the trial transcript from Petitioner’s state court
conviction;

2.

certified copy of the transcript from Petitioner’s state habeas corpus
hearings;

3.

decision of the state habeas courts; and,

4.

if Petitioner appealed from the judgment of conviction or from an
adverse judgment or order in a post-conviction proceeding, a copy of
Petitioner’s and Respondent’s brief on appeal and the opinion of the
appellate court, if any, as to each proceeding.

Either with the filing of the answer or within fifteen days, Respondent shall move for
dismissal or explain in writing why the petition cannot be adjudicated by a motion to dismiss.
Copies of all filed exhibits referenced in Respondent’s pleadings must be served on
Petitioner. Rodriguez v. Fla. Dep’t of Corr., 748 F.3d 1073, 1077 (11th Cir. 2014).
Petitioner and Respondent shall submit to the Court their respective briefs of law
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within the aforementioned sixty day period, not to exceed twenty-six typewritten pages,
double-spaced on letter-sized paper. Petitioner and Respondent shall refer to specific pages
of the trial transcript in which it is contended that constitutional error did or did not occur.
No discovery shall be had by either party without leave of court. Rule 6, Rules
Governing Section 2254 Cases in the United States District Courts.

Unless and until

Petitioner demonstrates that the state habeas court’s fact-finding procedure was not adequate
to afford a full and fair evidentiary hearing or that the state habeas court did not afford the
opportunity for a full, fair, and adequate hearing, this Court’s consideration of Petitioner’s
habeas petition will be limited to an examination of the evidence and other matters presented
to the state trial, habeas, and appellate courts.
Pursuant to the Memorandum effective December 1, 2015, entry of this Order on the
docket by the Clerk complies with the requirement of service of the petition on the
respondent, the Attorney General, or other appropriate officer. See General Order, MC 415022 (S.D. Ga. Dec. 3, 2015). Pursuant to that Memorandum, service is accepted upon entry
of this Order. The Court further ORDERS the CLERK to serve this Order upon Petitioner.
SO ORDERED this 13th day of December, 2016, at Augusta, Georgia.

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