Brown v. Tatum

Filing 18

REPORT AND RECOMMENDATIONS denying 1 Petition for Writ of Habeas Corpus filed by Roosevelt P. Brown, and denying 2 MOTION for Leave to Proceed in forma pauperis filed by Roosevelt P. Brown. Objections to R&R due by 8/8/2016. Signed by Magistrate Judge G. R. Smith on 7/25/16. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ROOSEVELT P. BROWN JR.,
Petitioner,
v.

Case No. CV415-210

CLAY TATUM, Warden,
Respondent.

REPORT AND RECOMMENDATION
Convicted on May 11, 2009 in Chatham County Superior Court of
burglary and sentenced to twenty years as a recidivist (doc. 1 at 2-3),
Roosevelt Brown seeks to vacate his conviction under 28 U.S.C. § 2254.
Review of the parties’ briefing shows that his petition must be dismissed
as untimely.
Brown had to file for § 2254 relief within one year after the date his
conviction became final. 28 U.S.C. § 2244(d)(1). 1 That clock is stopped
only by the pendency of a properly filed state collateral review
proceeding. 28 U.S.C. § 2244(d)(2); Rich v. Sec’y for Dep’t of Corr. , 512
F. App'x 981, 982–83 (11th Cir. 2013); Nesbitt v. Danforth , 2014 WL
1

That provision includes other events which trigger the one-year limitations period,
but none apply here. See 28 U.S.C. § 2244(d)(2)-(4).

61236 at * 1 (S.D. Ga. Jan. 7, 2014) (“28 U.S.C. § 2244(d)(1)’s one-year
clock ticks so long as the petitioner does not have a direct appeal or
collateral proceeding in play.”).
Hence, sitting on any claim and creating time gaps between
proceedings can be fatal. Kearse v. Sec’y, Fla. Dep’t of Corr. , 736 F.3d
1359, 1362 (11th Cir. 2013); Nesbitt , 2014 WL 61236 at * 1. And 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 post-conviction 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 v. Hart , 2013 WL 2385197 at * 3
(S.D. Ga. May 21, 2013).
The Georgia Court of Appeals affirmed Brown’s conviction and
sentence on July 27, 2011. Doc. 17-3 at 1. Pursuant to that court’s
rules, he then had ten days to file a notice of intent to petition for a writ
of certiorari. Ga. Ct. App. R. 38(a)(1). He never did, so his conviction

Oj

became final on Monday, August 8, 20112 when those ten days expired.

See Gonzalez v. Thaler , ___ U.S. ___, 132 S. Ct. 641, 653 (2012) (finality
attaches for petitioners who do not pursue the appellate review process
all the way to the Supreme Court when the time for seeking such review
expires) (citing 28 U.S.C. § 2244(d)(1)(A)).
Brown then had one year -- until August 8, 2012 -- to either file a §
2254 petition, or toll the limitations period by seeking state collateral
relief. 28 U.S.C. § 2244(d)(2); Rich , 512 F. App'x at 982–83. He didn’t
file his state habeas corpus petition until October 12, 2012 (doc. 17-4 at
1), 432 days after his conviction became final, and 66 days after the oneyear limitations period ended. That state filing therefore had no tolling
effect, since no time remained on his § 2254 clock. Webster , 199 F.3d at
1259.
Accordingly, Brown’s § 2254 petition is untimely and should be

DENIED . His motion for leave to proceed in forma pauperis is
GRANTED . Doc. 2. Applying the Certificate of Appealability (COA)
standards set forth in Brown v. United States , 2009 WL 307872 at * 1-2

2

Ten days from July 27, 2011 fell on Saturday, August 6, 2011. Pursuant to
O.C.G.A. § 1-3-1(d)(3) (and Fed. R. Civ. P. 6(a)(1)(C), for that matter), the due date
became the following Monday, August 8, 2011.
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(S.D. Ga. Feb.9, 2009), the Court discerns no COA-worthy issues at this
stage of the litigation, so no COA should issue either. 28 U.S.C. §
2253(c)(1); Rule 11(a) of the Rules Governing Section 2254 Cases (“The
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”) (emphasis added). Leave
to proceed in forma pauperis on appeal therefore is moot.

SO REPORTED AND RECOMMENDED , this 25th day of
July, 2016.

UNITED STATES MAGISTRATE JUDGE
SOIJThIERN DISTRICT OF GEORGIA

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