BIGGINS v. BARROW
Filing
27
ORDER denying 20 Motion to Appoint Counsel ; denying 21 Motion to expand the record ; denying 22 Motion for Hearing. Signed by Magistrate Judge G. R. Smith on 6/17/2013. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANTONIO BIGGINS,
)
)
Petitioner,
)
)
V.
)
Case No. CV412-273
)
DONALD BARROW,
)
)
Respondent.
)
REPORT AND RECOMMENDATION
The 28 U.S.C. § 2254 petition filed in this case is barred by the
one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1).
Antonio Biggins was convicted in state court of family violence aggravated
assault, possession of knife during commission of a felony, and two counts
of family violence aggravated battery.
Biggins v. State, 299 Ga. App. 554,
554 (Aug. 5, 2009). He unsuccessfully appealed, id., and 272 days later
filed a state habeas petition on May 14, 2010.' Doe. 18-1 at 1. That court
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Calculating timeliness under § 2244(d)(1) requires courts to determine when a
petitioner has filed something, and that is complicated when they are imprisoned
because they cannot simply walk to a nearby mailbox. Federal courts thus follow the
mailbox rule, under which courts credit the start date of something by the date on
which the prisoner signs his filing and places it within his prison's mail system. See
French v. Carter, 828 F. Supp. 2d 1309, 1315-16 (S.D. Ga. 2012). But Georgia follows
a hybrid rule, wherein the initial state habeas petition filing date is established by the
denied relief on April 8, 2011. Doe. 18-3.
On May 23, 2011, Biggins applied to the Georgia Supreme Court for
a certificate of probable cause to appeal, doe. 18-4 at 1 (court filing date),
but it was dismissed as untimely on September 10, 2012. Doe. 18-5. He
pursued no other relief other than his 28 U.S.C. § 2254 petition here,
which he filed on October 17, 2012. Doe. 1 at 25 (signature date). The
state now moves to dismiss that petition as untimely. Doe. 17.
Section 2244(d)(1)'s one-year clock ticks so long as the petitioner
does not have a direct appeal or collateral proceeding in play.
Everett v.
Barrow, 861 F. Supp. 2d 1373, 1375 (S.D. Ga. 2012). Hence, sitting on
any claim and creating time gaps between proceedings can be fatal. See
Rivera v. Pollard, 504 F. App'x 502, 505 (7th Cir. 2013); Herbert v.
Dickhaut, 695 F.3d 105, 110-11 (1st Cir. 2012). And "[a]n application
that is untimely under state law is not 'properly filed' for purposes of
state habeas court clerk's "filing-stamp" date, while appeals from an adverse state
habeas ruling are governed by the mailbox rule. Roberts v. Cooper, 286 Ga. 657,
660-61 (2010) (mailbox rule did not apply to an initial pro se petition for habeas relief
but was instead limited to appeals from rulings on habeas petitions); Lewis v.
Howerton, 2012 WL 4514044 at * 2 n. 3 (N.D. Ga. Sep. 30, 2012) ("the 'mailbox rule'
only applies to appeals of denials of habeas corpus petitions, not to the filing of such
petitions in the trial court.") (emphasis omitted). Hence, the May 14, 2010
court-stamp filing date controls here.
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tolling AEDPA's limitations period." Gorby v. McNeil, 530 F.3d 1363, 1367
(11th Cir. 2008) (cite omitted); Dixon v. Hart, 2013 WL 2385197 at * 3
(S.D. Ga. May 21, 2013).
Finally, once the one-year clock runs out, it cannot be restarted or
reversed merely by filing a new state court or federal action.
Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (a state postconviction
motion filed after expiration of the limitations period cannot toll the
period, because there is no period remaining to be tolled); Nowill v.
Barrow, 2013 WL 504626 at *1 n. 3 (S.D. Ga. Feb. 8, 2013); Dixon, 2013
WL 2385197 at * 3
Because Biggins appealed Biggins no further, his conviction became
final ten days later, August 15, 2009, pursuant to Rules 37 & 38 of the
Georgia Court of Appeals and also Rule 38 of the Georgia Supreme Court.
Gonzalez v. Thaler, - U.S. -, 132 S. Ct. 641, 656 (2012); Brown v.
Chatman, 2012 WL 5381356 at * 1n. 2 (S.D. Ga. Sept. 24, 2012). He does
not dispute that he then let 272 days elapse before he filed for state habeas
relief on May 14, 2010. Doc. 18-1 at 1. When that court denied relief on
April 8, 2011, doe. 18-3, Biggins had 30 days -- until May 8, 2011 -- to
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appeal to the Georgia Supreme Court.
See O.C.G.A. § 9-14-52(b); see also
Spears v. Danforth, 2013 WL 1701736 at * 2 (S.D. Ga. Feb. 27, 2013).
But he did not even sign his application for certificate of probable
cause to appeal until May 11, 2011. Doe. 8-4 at 45 (signature filing date);
see also supra n. 1. For that matter, there is a "May 23, 2011" stamp date
on the face of that appeal, id. at 1, though the state is noticeably silent
about this in its motion and brief, does. 17 & 17-1. Even were the Court
to apply "mailbox rule" to Biggins, his three-day miss was fatal: With no
properly filed state proceeding pending, the remainder of the 365-day
federal clock (following the earlier, 272-day lapse of time) ran out long
before he filed his federal habeas petition on October 17, 2012. Doe. 1 at
25.
Biggins invokes equitable tolling. Doe. 24 at 5. He thus must now
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, 560 U.S. , 130 S. Ct. 2549, 2562 (2010) (quotes and
cite omitted). To that end, "[t]here are no bright lines in determining
whether equitable tolling is warranted in a given case. Rather, the
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particular circumstances of each petitioner must be taken into account."
Pabon u. Mahanoy, 654 F.3d 385, 399 (3rd Cir. 2011) (applying Holland).
Biggins "bears the burden of demonstrating that extraordinary
circumstances prevented the timely filing of a § 2255 motion such that
equitable tolling applies, and mere conclusory allegations are not
sufficient to raise the issue."
Doe v. United States, 469 F. App'x 798, 800
(11th Cir. 2012).
Petitioner has filled many pages of his brief but never gets around
the fact that he signed his last appeal three days late. Doc. 24. To that
end, he moves to expand this Court's record, doc. 21, and in effect asks
this Court to order the Georgia Supreme Court clerk to furnish the
letter-chain he formed inquiring about his still-born appeal. Doc. 21 at
1-2. That motion is DENIED as futile, as is his motion for an
evidentiary hearing, doc. 22.
Nor has he shown grounds for appointment
of counsel, so his motion for one is likewise DENIED. Doc. 20.
The respondent's motion to dismiss (doc. 17) should be GRANTED
and Biggins' petition should thus be DISMISSED. Applying the
Certificate of Appealability (COA) standards set forth in Brown v. United
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States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns
no COA-worthy 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
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June, 2013.
UNITED TATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
day of
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