Jackson v. McLaughlin

Filing 8

REPORT AND RECOMMENDATIONS dismissing with prejudice 1 Petition for Writ of Habeas Corpus, and DENYING 7 MOTION for Extension of Time filed by Roderick Jackson. (Objections to R&R due by 5/5/2017). The Clerk is therefore DIRECTED to serve Jackson with a copy of his signature page, and he must return it to this Court (place it in his prisons mail system) within 14 days of the date this ruling is served upon him. Signed by Magistrate Judge G. R. Smith on 4/5/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
RODERICK JACKSON

,

Petitioner,
v.

CV416-332

GREGORY MCLAUGHLIN ,
Respondent

REPORT AND RECOMMENDATION
Guilty-plea convicted of cruelty to children charges, Roderick
Jackson petitions this Court for 28 U.S.C. § 2254 relief. Doc. 1. The
State moves to dismiss, arguing that it is untimely under § 2254’s
limitation statute, 28 U.S.C. § 2244(d)(1). Doc. 5; doc. 5-1. 1 The state
trial court sentenced Jackson on March 14, 2012, doc. 6-1 at 1, denied his

1

The Court encourages the Attorney General of Georgia to abandon the
anachronistic practice of filing “announcement motions” with briefs. See doc. 5
(“Motion To Dismiss Petition As Untimely,” referring the Court to the motion’s legal
basis in a second document, doc. 5-1, the State’s brief). A simple “Motion To
Dismiss” that also contains the State’s brief (hence, a “motion/brief”) will do, sparing
both the State and this Court the extra paperwork labor and file space. See L.R.
7.1(b) (“A motion and supporting memorandum (brief) may be filed as one
document.”).

motion to withdraw his guilty plea on November 13, 2012, doc. 6-3 at 2,
and on November 26, 2013 granted his request to dismiss “all pending
motions[,] including [his] notice of appeal.” Doc. 6-4 at 1.
Jackson had to file for § 2254 relief within one year after the date
his conviction became final. 28 U.S.C. § 2244(d)(1). That clock is
stopped only by the pendency of a properly filed state direct appeal or
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 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

2

is no period remaining to be tolled); Nowill v. Barrow , 2013 WL 504626
at * 1 n. 3 (S.D. Ga. Feb. 8, 2013).
Under O.C.G.A. § 5-6-38, Jackson’s convictions and sentences
became “final”thirty days after November 26, 2013 -- the expiration of
the time for filing a notice of appeal of the trial court’s dismissal order.
Jackson filed his state habeas petition in July 2013 -- months before the
state trial court dismissed, per his request, “all pending motions and the
notice of appeal.” Doc. 6-4 at 1; doc. 6-5 at 1, 7. The State concedes that
by filing his state habeas petition before entry of that dismissal order,
Jackson stopped § 2244(d)(1)’s clock. Doc. 5-1 at 5.
On November 4, 2014, the state habeas court denied relief. Doc. 66 at 1. Under O.C.G.A. § 9-14-52(b), Jackson then had 30 days to file a
notice of appeal in the superior court and a Certificate of Probable Cause
(CPC) application in the Georgia Supreme Court (Georgia’s
requirements to appeal that ruling). King v. Warden , 665 F. App’x 785,
787 (11th Cir. 2016). He filed a CPC application but failed to also file a
notice of appeal in the superior court, so the Georgia Supreme Court
dismissed the CPC application because he missed the 30-day, appealnotice deadline as of December 4, 2014. Doc. 6-7 at 1. That CPC attempt
3

therefore was not “properly filed,” 2 so the clock was not stopped and,
consequently, it resumed ticking on December 5, 2014. Wade v. Battle ,
379 F.3d 1254, 1262 (11th Cir. 2004). Under § 2244(d)(1)(A), that gave
him until Monday, December 7, 2015, 3 to file it. By waiting until
December 12, 2016, he simply missed the deadline.
Even at that, Jackson failed to sign his petition, much less respond
to Question 18, which required that he explain why § 2244(d)(1)’s oneyear limit did not bar his petition. Id. at 13-15. The Clerk is therefore

DIRECTED to serve Jackson with a copy of his signature page, and he
must return it to this Court (place it in his prison’s mail system) within
14 days of the date this ruling is served upon him, or risk dismissal on

2

See Artuz v. Bennett , 531 U.S. 4, 8 (2000) (a state post-conviction action is “properly
filed” for § 2244(d)(2) purposes “when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings,” such as “the form of the
document, the time limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee” (footnote omitted)); see also Allen v. Siebert , 552
U.S. 3, 7 (2007) (“When a postconviction petition is untimely under state law, that is
the end of the matter for purposes of § 2244(d)(2).”) (quotes and brackets omitted)).
3

Fed. R. Civ. P. 6(a)(1)(C) does not permit a time period to end on a Saturday, a
Sunday, or a legal holiday; instead it ends at the end of the next day that the Court is
open. Fed. R. Civ. P. 6(a)(1)(C). December 5, 2015 fell on a Saturday, so December 7,
2015, was Jackson’s last day to file.
4

non-prosecution grounds. 4 But even if the Court accepts his § 2254
petition as filed on December 12, 2016 (or a few days before that, if he
claims he placed it in his prison’s mail earlier), it would still be timebarred and thus must be DISMISSED WITH PREJUDICE .
Meanwhile, Jackson moves for a 90-day extension of time to
respond to the State’s Motion to Dismiss. Doc. 7. He claims mental and
law-library access impediments.

Id. The Court DENIES the motion

(doc. 7) but extends from 14 to 30 days the date on which he may file an
Fed. R. Civ. P. 72(b)(2) Objection to this Report and Recommendation.
This legal issue is simple enough, and it is conspicuous that Jackson
failed to answer Question 18 of the § 2254 form (the Court will give him
the benefit of the doubt and assume that his signature omission was just
an oversight). That extension will be rescinded, and the Court will

4

See L.R. 41(b); see also Betty K Agencies, Ltd. v. MfV Monada, 432 F.3d 1333, 1337 (11th
Cir. 2005) (district courts may sua sponte dismiss an action pursuant to Fed. R. Civ. P. 41(b)
if the plaintiff fails to comply with court rules or a court order); Donaldson v. Clark , 819 F.2d
1551, 1557 n. 6 (11th Cir. 1987) (district court has inherent authority to sanction parties for
“violations of procedural rules or court orders,” up to and including dismissals with
prejudice); McKinley v. FDIC , 2016 WL 930291 at * 2 (11th Cir. Mar. 11, 2016) (affirming
this Court’s Rule 41(b) dismissal because “(1) Plaintiff blatantly flouted the magistrate
judge’s order, (2) the order warned Plaintiff of dismissal, and (3) the district judge dismissed
without prejudice”).

5

advise dismissal on non-prosecution grounds, if Jackson fails to timely
return his executed signature page.
Meanwhile, it is plain that unless Jackson responds with a knockout punch, he has raised no substantial claim of deprivation of a
constitutional right. Accordingly, no certificate of appealability should
issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule 11(a) of the Rules
Governing Habeas Corpus Cases Under 28 U.S.C. § 2254 (“The district
court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.”). Any motion for leave to appeal

in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within thirty days of
service, any party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
6

After the objections period has ended, and if the Court has not
granted an additional extension or otherwise paused this case, the
Clerk shall submit this R&R together with any objections to the
assigned district judge. The district judge will review the magistrate
judge’s findings and recommendations pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to timely file
objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1;

see Symonett v. V.A. Leasing Corp. , 648 F. App’x 787, 790 (11th Cir.
2016); Mitchell v. U.S. , 612 F. App’x 542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED , this 5th day of April,
2017.

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

7