Allen v. Hall et al

Filing 6

ORDER adopting 4 Report and Recommendations, and dismissing this case with prejudice. Signed by Judge J. Randal Hall on 01/24/2017. (thb)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION JOSEPH E. ALLEN, Petitioner, CV417-002 v. HILTON HALL, Respondent. ORDER After a careful de novo review of the record in this case, the Court concurs with the Magistrate Judge's Report and Recommendation (R&R), to which objections have been filed. In concluding that petitioner Joseph E. Allen's 28 U.S.C. ยง 2254 petition is time-barred, the R&R resoundingly discredited his "newly discovered documents" argument. Doc. 4 at 4-6. Allen now seeks to excuse his untimeliness by citing ongoingmental health problems that he claims prevented him from fully litigating his case. See doc. 5. However, "allegations of mental incapacity are insufficient to show a causal connection tohis untimely filing." Spears v. Warden, 605 F.App'x900,904 (11th Cir.), cert, deniedsub nom. Spears v. Tatum, 136 S. Ct. 300(2015). Thefactual record is sufficiently developed to conclude that: as of June2010at the latest (whenhis first statehabeas action wasdenied on the merits) Allenwasnot so mentally impaired that his alleged mental illness "infact" prevented him from pursuing habeas relief. His abandoned attempt to seek federal habeas reliefhere in 2014 {see Allen v. Tatum, No. CV414- 169) and unsuccessful pursuit of successive state habeas relief in 2015 (see doc. 1 at 4, Tatnall County habeas petition denied as untimely and successive) further demonstrate petitioner's ability to seek habeas relief over the years, regardless of his alleged mental impairment. Finally, even if Allen had established a mental impairment constituting an "extraordinary circumstance," "equitable tolling is available only if a petitioner establishes both extraordinary circumstances and due diligence." Spears, 605 F. App'x at 905 (quotes omitted). Here, nothing in the record indicated that petitioner attempted to pursue his rights between 2010 and 2014, when his first federal habeas case was dismissed for want of prosecution. See CV414-169 at doc. 3. Accordingly, the R&R is ADOPTED, and this case is DISMISSED with prejudice.1 ORDER ENTERED at Augusta, Georgia, this ^^4ay ofJanuary, 2017. J. RANB^LJIALL UNITED/STATES DISTRICT JUDGE CRN DISTRICT OF GEORGIA 1 No hearing is necessary because petitioner has not shown, byway of allegations or supporting evidence, that further inquiry bythe district court would help him prove thathe pursued his rights diligently. Spears, 605 F. App'x at 905.

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