Jackson v. Toole

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge state that Jackson's 2254 petition should be denied as well as his in forma pauperis status on appeal re 1 Petition for Writ of Habeas Corpus filed by Roderick Jackson Objections to R&R due by 8/11/2011. Signed by Magistrate Judge G. R. Smith on 7/27/2011. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RODERICK JACKSON,
Petitioner,
v.

Case No. CV411-031

ROBERT TOOLE and THE
ATTORNEY GENERAL OF THE
STATE OF GEORGIA,
Respondents.

REPORT AND RECOMMENDATION
Roderick Jackson, currently incarcerated at Wilcox State Prison in
Abbeville, Georgia, has petitioned for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (Doc. 1.) He contends that his 1996 Chatham County
conviction for robbery, kidnaping, and theft by taking violated his
constitutional rights. ( Id. at 6.) While respondent does not raise
timeliness as a defense, Jackson’s petition is clearly untimely. 1
Additionally, the state habeas court’s determination of the issue is due
deference.
Federal district courts are empowered to raise 28 U.S.C. § 2244(d)(1)’s
statute of limitation sua sponte and dismiss those actions that are time-barred.
Jackson v. Sec’y for Dep’t of Corrs., 292 F.3d 1347, 1349 (11th Cir. 2002).
1

A. Untimely Petition
The Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA") amended 28 U.S.C. § 2244 to include a one-year statute of
limitations for habeas corpus petitions filed by state prisoners. 28 U.S.C.
§ 2244(d)(1). The limitations period runs from "the date on which the

[state] judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review." 28 U.S.C. §
2244(d)(1)(A); Jimenez v. Quarterman, 555 U.S. 113, 129 S. Ct. 681, 685
(2009). A state criminal judgment becomes final “‘on the date on which
the [United States] Supreme Court issues a decision on the merits or
denies certiorari, or . . . on the date on which defendant’s time for filing
such a petition expires.’” Bond v. Moore, 309 F.3d 770, 773 (11th Cir.
2002) ( quoting Kaufmann v. United States, 282 F.3d 1336, 1339 (11th
Cir. 2002)); Jimenez, 129 S. Ct. at 685.
The one-year limitations period is tolled, however, when a state
prisoner properly files an application for state collateral review. 28
U.S.C. § 2244(d)(2); see Ford v. Moore, 296 F.3d 1035, 1036-37 (11th Cir.
2002) (statute of limitations tolled while state prisoner sought state
2

habeas corpus relief). Although the filing of a state habeas action tolls
the one-year limitations period, it does not reset the limitations period.
See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (a state

habeas petition filed after the AEDPA limitations period has expired
cannot toll the statute of limitations because there is no time left to toll).
That is, the days between the date upon which the conviction became
final and the beginning of state habeas review are counted toward the
limitations period.
Here, Jackson was convicted in December 1996. (Doc. 1 at 3.) The
Georgia Court of Appeals affirmed his conviction on March 23, 1998.
( Id.) Three-and-a-half years later (on September 4, 2001), he filed a
habeas petition in state court attacking his conviction. (Doc. 8-1 at 1.)
That petition was denied on May 30, 2006. (Doc. 8-2 at 1.) He did not
exhaust that claim by moving for a certificate of probable cause to
appeal. (Doc. 8-3 at 2, 4.) He filed a second state habeas petition on
December 29, 2009 based upon a recent change in the law. ( Id. at 5
(citing Garza v. State, 284 Ga. 696 (2008).) The petition was denied on
April 19, 2010. (Doc. 8-4 at 1.) The Georgia Supreme Court denied his

application for a certificate of probable cause to appeal the habeas ruling
on January 24, 2011. (Doc. 8-6 at 1.) On February 14, 2011, he filed the
instant federal habeas petition.
It is unclear from Jackson’s filings precisely when his conviction
became final, but it is ultimately unimportant. What is clear is that
Jackson allowed more than three years to elapse between the denial of
his first state habeas petition and the filing of his second. 2 As the Court
explained above, the second habeas petition did not reset the AEDPA
clock. Far more than a year of countable time passed between the time
Jackson’s conviction became final and the filing of his federal petition, so
he is untimely. Moreover, Jackson cannot rely upon the intervening
change in state law to restart the limitations period under 28 U.S.C. §
2244(d)(1)(D) (running the limitations period from “the date on which
the factual predicate of the claim . . . could have been discovered”). As a
general rule, an intervening change in state law does not qualify as a
“fact” which would restart the limitations period under § 2244(d)(1)(D).
It is also clear that he waited more than three-and-a-half years to file his first
state habeas petition. While the Court is not certain how long his case remained on
direct review, it is safe to assume a significant number of countable days elapsed
during that period.
2

4

Shannon v. Newland, 410 F.3d 1083, 1088-89 (9th Cir. 2005)
(intervening change in state law clarifying the elements of a crime does
not qualify as a “fact” resetting limitations period under §
2244(d)(1)(D)); but see Johnson v. United States, 544 U.S. 295, 305-310
(2005) (an intervening legal decision may be a fact under 28 U.S.C. §
2255’s limitations clock if the legal decision arose in the petitioner’s own
case -- e.g., the petitioner reversed a state conviction which had resulted
in his conviction as an armed career criminal). The question, then, is
whether the late filing is subject to equitable tolling, based upon the
intervening change in the law.
A petitioner is not time barred from filing if he is entitled to
equitable tolling of the one-year limitation period. He must, however,
show “‘(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and prevented timely
filing.” Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2562 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); Sandvik v.
United States, 177 F.3d 1269, 1271-72 (11th Cir.1999). The Eleventh
Circuit has held that “[t]he burden of establishing entitlement to this

extraordinary remedy plainly rests with the petitioner,” emphasizing
that “[e]quitable tolling is an extraordinary remedy and is applied
sparingly.” Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).
Jackson fails to satisfy the second prong. As a general rule, a
change in the law, standing alone, does not constitute an extraordinary
circumstance. In an analogous setting -- a petitioner seeking untimely
Fed. R. Civ. P. 60(b)(6) relief from a final judgment -- the Supreme Court
addressed the effect of a change in law, reasoning that “[i]t is hardly
extraordinary that subsequently, after petitioner's case was no longer
pending, this Court arrived at a different interpretation [than the
District Court below reached].” Gonzalez v. Crosby, 545 U.S. 524, 53738 (2005). More importantly, the change in the law here did not prevent
Jackson from filing a federal habeas petition in a timely manner. The
Garza case simply modified the test for kidnapping’s asportation element
-- the requirement that the victim be moved against his will. 284 Ga. at
697. While it fundamentally changed the test for asportation, Jackson
cannot show that pre- Garza law was an impediment to timely filing a
federal habeas petition. He certainly could have exhausted his remedies

and filed a federal habeas action addressing his pre- Garza claims before
the limitations period expired. While the subsequent change in the law
provided a stronger footing for a habeas challenge, Jackson was perfectly
capable of filing a federal habeas petition in a timely manner. 3
B. Deference

Even if the Garza case did entitle Jackson to equitable tolling, his
claim still fails. The state court addressed his claim on the merits, and
its determination is due deference here.
In addition to setting new timeliness standards, AEDPA placed “a
new constraint on the power of a federal habeas court to grant a state
prisoner’s application for a writ of habeas corpus with respect to claims
adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S.
362, 412 (2000); Bell v. Cone, 535 U.S. 685, 693 (2002) (AEDPA was
intended “to prevent federal habeas ‘retrials’ and to ensure that
Furthermore, Petitioner's pro se status affords him little advantage, as the Eleventh
Circuit has held that lack of familiarity with the judicial process will not justify equitable
tolling. See, e.g., Rich v. Dep't of Corrs., 317 F. App’x 881, 884 (11th Cir. 2008) (noting that
pro se status is not an extraordinary circumstance); Helton v. Sec'y Dep't of Corrs., 259 F.3d
1310 (11th Cir. 2001) (refusing to recognize an extraordinary circumstance when an
incarcerated petitioner mistakenly believed the AEDPA period of limitations had not started
to run).
3

7

state-court convictions are given effect to the extent possible under
law.”); see Peterka v. McNeil, 532 F.3d 1199, 1200-01 (11th Cir. 2008)
(under AEDPA a federal court’s review of a state court ruling is “greatly
circumscribed and highly deferential to the state courts”) (citation
omitted); Trotter v. Sec’y, Dep’t of Corr., 535 F.3d 1286, 1290 (11th Cir.
2008) (AEDPA limits a federal court’s review of a state court’s decisions
“and establishes a general framework of substantial deference for
reviewing every issue that the state courts have decided.”) (citations
omitted). These restrictions on federal habeas review are set forth in 28
U.S.C. § 2254(d), which provides that a federal court may grant a writ of
habeas corpus for a claim adjudicated on the merits in state court only if
the state court adjudication
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
Where the Supreme Court has decided the issue addressed by the
8

state court, 4 the federal habeas court must determine whether the state
court’s decision is “contrary to” or involves an “unreasonable
application” of the controlling precedent. These § 2254(d)(1) clauses
have independent meaning and furnish separate bases for reviewing a
state court’s decisions. Bell, 535 U.S. at 694; Williams, 529 U.S. at
404-05; Putnam, 268 F.3d at 1241 (11th Cir. 2001). A state court

4 The “threshold question” under § 2254(d)(1) is whether the habeas petitioner is
seeking to apply a rule of law that was clearly established at the time his state court
conviction became final. Williams, 529 U.S. at 390. Since the statute expressly provides that
only pronouncements “by the Supreme Court of the United States” qualify as “clearly
established Federal law,” 28 U.S.C. § 2254(d)(1), a federal habeas court may not look to the
“the case law of the lower federal courts” in determining what federal law is “clearly
established.” Putnam v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). Further, the statute
“refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision.” Williams, 529 U.S. at 412. These “holdings -- the
exclusive touchstone for clearly established federal law -- must be construed narrowly and
consist only of something akin to on-point holdings.” House v. Hatch, 527 F.3d 1010, 1015
(10th Cir. 2008).

So unless a prior Supreme Court decision “squarely addresses” the issue presented in
the habeas case, Wright v. Van Patten, 552 U.S. 120, 125 (2008), or establishes a legal
principle that “clearly extend[s]” to the conduct at issue in that case, then it cannot be said
that the law is clearly established under AEDPA. Id. at 123; Moses v. Payne, 555 F.3d 742,
754 (9th Cir. 2009). Thus, “federal courts may no longer extract clearly established law from
the general legal principles developed in factually distinct contexts.” House, 527 F.3d at
1017. If the federal habeas court makes a threshold determination that the law was not
clearly established at the time the state court issued its decision, then that finding is
dispositive in the § 2254(d)(1) analysis, and there is no need for the Court to assess whether
the state court’s decision conflicts with controlling United States Supreme Court authority.

Id.

decision is “contrary to” clearly established federal law if the state court
arrives at a conclusion opposite to that reached by the Supreme Court on
a question of law or decides a case differently than the Supreme Court on
a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06,
412-13. In contrast, a state court decision involves an “unreasonable
application” of clearly established federal law where it correctly identifies
the governing legal rule from the Supreme Court’s cases but applies it
unreasonably to the facts of the particular prisoner’s case. Id. at 407-08,
413. Thus, “[a] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411. Instead, the state court’s
application of Supreme Court precedent must be “objectively
unreasonable.” Id. at 409; Bell, 535 U.S. at 694; Borden v. Allen,
F.3d 2011 WL 2685730 at * 25 (11th Cir. Jul. 12, 2011). That
presents “a substantially higher threshold” than the pre-AEDPA
standard. Schriro v. Landrigan, 550 U.S. 465, 473 (2007); see McDaniel

10

v. Brown, ___ U.S. ___, 130 S. Ct. 665 at *671-674 (2010). 5

Jackson raised Garza’s change in the law in his second state habeas
petition, arguing, as he does now, that his conviction for kidnapping was
obtained in violation of the Constitution’s Fifth, Sixth, and Fourteenth
Amendments because the evidence against him was insufficient to
support the conviction under Jackson v. Virginia, 443 U.S. 307 (1979).
(Doc. 8-3 at 5.) Under Jackson, the proper standard for reviewing a
sufficiency of the evidence claim is to ask whether, after viewing the
evidence in the light most favorable to the prosecution, a rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt. 443 U.S. at 324. Asportation, of course, is an essential
element of the crime of kidnapping. O.C.G.A. § 16-5-40.
Prior to Garza, the Georgia courts held that asportation may be
established by “movement of the victim, however slight.” 284 Ga. at 697
5 Federal courts also must presume state court factual findings to be correct
unless they are rebutted by the petitioner “by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). This statutory presumption of correctness applies to findings of
fact made by both state trial and appellate courts. Mason v. Allen, 605 F.3d 1114,
1118-19 (11th Cir. 2010); Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007). Such
deference does not apply, however, to mixed determinations of law and fact. Parker
v. Head, 244 F.3d 831, 836 (11th Cir. 2001).

11

(quotations and citation omitted). The “movement” requires more than
a mere positional change. Id. at 698. It must be movement “designed to
better carry out the criminal activity.” Id. (citation omitted). 6 After
noting that the Georgia test was out of keeping with the rest of the
nation, blurred the distinction between false imprisonment and
kidnapping, allowed cumulative punishment for a single course of
conduct, in violation of “substantive double jeopardy,” and enabled
abusive prosecutions in violation of the Due Process clause, the Garza
court embraced the “modern approach with respect to asportation.” Id.
at 700-702.
Georgia courts are thus now required to assess four factors: “(1)
the duration of the movement; (2) whether the movement occurred
during the commission of a separate offense; (3) whether such movement
was an inherent part of that separate offense; and (4) whether the
movement itself presented a significant danger to the victim independent
of the danger posed by the separate offense.” Id. at 702 (citation

Jackson does not contend that his conviction was out of keeping with that
standard.
6

12

omitted). 7 Those factors help in determining “whether the movement in
question . . . substantially isolate[d] the victim from protection or
rescue,” or was “merely a ‘criminologically insignificant circumstance’
attendant to some other crime.” Id. (citations omitted).
In addressing Jackson’s claim, the state court discussed the offense
facts in detail:
Here, the petitioner’s charge of kidnapping alleged that the
petitioner abducted and stole away the person of Wanda Spacheck
without lawful authority or warrant and held her against her will.
The evidence shows that the petitioner asked the victim to come
back to the kitchen, as the petitioner had made coffee and wanted
to verify that he was not the one that made the mess. The victim
and the petitioner went towards the kitchen. The petitioner went
to the cooler in the back, opened it, went inside, and began making
an issue of missing beer. The petitioner then exited the cooler, and
the victim stepped out of the way so the petitioner could close the
cooler door. As the victim began to take a step forward towards the
front of the kitchen, the petitioner stepped in front of the victim,
blocked her path, and demanded her money and car keys. The
petitioner slammed the victim against the wall and again
demanded her car keys. The victim told the petitioner she would
retrieve the keys when they got to the front, but the petitioner
replied that he wasn’t kidding and pulled a butcher knife to the
victim’s face. The victim and the petitioner struggled, and the
petitioner pushed the victim into the cooler. The petitioner fell
7 Garza has since been superseded by statute. However, Garza applies
retroactively, Hammond v. State, 289 Ga. 142, *1 (2011), even though the statute
itself is not retroactive. Curtis v. State, ___ Ga. App. ___, 2011 WL 2698182 at * 3 n.
9 (Jul. 13, 2011).

13

onto the floor, with one leg still outside the cooler door. The victim
started screaming and pushing, and the petitioner kept trying to
push the victim inside the cooler. She did not go into the cooler
willingly. The petitioner’s leg was being slammed by the cooler
door. The petitioner finally jerked her leg into the cooler out of
fear of being cut by the knife and bleeding to death.
Once inside the cooler, the victim went crazy, screaming and
running back and forth and charging the door and kicking [the]
door as there was nothing on the door like a knob. She threw
things at the fan motor, hoping to sound an alarm. Ultimately
[she] was able to activate the emergency release in her frenzy. A
butcher knife was later found by the police inside the cooler
doorway.
( Id. at 3-4 (quotations and citations omitted).) Applying Garza, the state
habeas court reasoned that
Petitioner’s act of forcing the victim into the locked cooler was not
an incidental movement or an inherent part of another act, but
rather a particular attempt to isolate the victim from protection or
rescue. Furthermore, this Court finds the petitioner’s act of
pushing the victim into a cooler to be an act which presented
significant additional danger to the victim, independent of the
danger arising from the Robbery by Force. Therefore, under the
test articulated in Garza, this Court finds that the aforementioned
evidence at trial sufficiently shows asportation for the purposes of
establishing said element in a charge of kidnapping. As a result,
this court finds that the petitioner’s conviction for kidnapping
remains valid even under the change in law in Garza.
( Id. at 4.)

14

While the state habeas court never directly cited Jackson v.
Virginia, it is implicit in its analysis. 8 That is, after viewing the evidence
in the light most favorable to the prosecution, the state habeas court
reasonably concluded that a rational trier of fact could have found the
essential element of asportation beyond a reasonable doubt. See Verdree
v. State, 299 Ga. App. 673, 681-84 (2009) (where defendant forced
victims into restaurants’ walk-in coolers at gunpoint and locked them
inside, the actions were not necessary or inherent components of the
armed robbery, they created additional danger to the victims by
subjecting them to cold temperatures and isolating them, they reduced
the victims’ chance of rescue, and they enhanced defendant’s control
over them; in sum, the actions were enough to satisfy the asportation
element of kidnapping under Garza). The Court is satisfied that the
state habeas court’s decision was neither contrary to nor involved an
unreasonable application of Jackson v. Virginia. Accordingly, this Court

Petitioner’s second state habeas petition directly raised the claim under
Jackson v. Virginia (doc. 8-3 at 5), and Garza itself referenced the case. 284 Ga. at
704 n.7.
8

15

should defer to the state court’s judgment and deny Jackson’s § 2254
claim.
C. Conclusion
Jackson’s petition is untimely, and the state habeas court’s merits
determination is due deference. Accordingly, Jackson’s § 2254 petition
should be DISMISSED. Applying the Certificate of Appealability
(“COA”) standards, which are set forth in Brown v. United States, 2009
WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COAworthy issues at this stage of the litigation, so no COA should issue. 28
U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000) (approving sua sponte denial of COA before movant filed a notice
of appeal). And, as there are no non-frivolous issues to raise on appeal,
an appeal would not be taken in good faith. Thus, in forma pauperis
status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED this 27th day of
July, 2011.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
16