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)

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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

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