Dixon v. Hart
Filing
22
ORDER granting 12 Motion to Dismiss; adopting Report and Recommendations re 19 Report and Recommendations dismissing Dixon's 2554 petition. Signed by Judge William T. Moore, Jr on 2/28/2014. (loh)
F i LEn
U.S. DISJr
1.11 V?J
IN THE UNITED STATES DISTRICT COURP WflR
LU 20 P1 1 2: t
THE SOUTHERN DISTRICT OF GEORG A
SAVANNAH DIVISION
CHARLES DIXON,
)
SD. DISL GA.
Petitioner,
CASE NO. CV413-109
V.
WARDEN DARRELL HART,
Respondent.
ORDER
Before the Court is the Magistrate Judge's Report and
Recommendation (Doc. 19), to which objections have been
filed (Doc. 21). After a careful de novo review of the
record, the Court concludes that Petitioner's objections
are without merit. Accordingly, the report and
recommendation is ADOPTED as
the Court's opinion in this
case. As a result, Respondent's Motion to Dismiss (Doc.
12) is GRANTED and Petitioner's 28 U.S.C. § 2254 Petition
is DISMISSED.
The Clerk of Court is DIRECTED to close this
In his objections, Petitioner contends that the time
for filing his habeas petition should be tolled because he
filed a Notice of Intent to File an Extraordinary Motion
for New Trial. (Doc. 21 at 3-4.) Petitioner does not
detail with whom this notice was filed, but cites O.C.G.A.
§ 5-5-41.
This section, however, only states that
11 20
days' notice shall be given to the opposite party" when
filing an extraordinary motion for new trial.
§ 5-5-41(a).
O.C.G.A.
It requires nothing to be filed with the
Court and cannot serve to toll the time for Petitioner to
seek habeas relief. Therefore, the 304 days Petitioner
waited to actually file his motion count toward the 365 he
had to file his habeas petition. Even assuming that
Petitioner timely appealed the denial of his Extraordinary
Notion for New Trial,' he still failed to file a timely
habeas petition within the remaining 61 days. As a result,
the Magistrate Judge correctly concluded that Petitioner
failed to timely seek habeas relief and that his § 2254
petition should be dismissed.
SO ORDERED this
day of February 2014.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
' While Petitioner claims to have appealed the denial of his
motion to the Georgia Supreme Court, which ultimately
upheld the denial, the record contains no documentation of
that appeal or any corresponding opinion from the Georgia
Respondent claims that Petitioner took no
Supreme Court.
Because neither Petitioner nor Respondent have
appeal.
produced documentation of any appeal, it is difficult for
the Court to conclude that an appeal actually occurred.
Regardless, Petitioner failed to timely seek habeas relief
under either calculation.
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?