Dunson v. Laughlin

Filing 8

REPORT AND RECOMMENDATIONS dismissing with prejudice re 1 Petition for Writ of Habeas Corpus filed by Joshua Jermaine Dunson. Objections to R&R due by 6/29/2017. Signed by Magistrate Judge G. R. Smith on 6/15/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FILED
Scott L. Poff, Clerk
United States District Court

JOSHUA JERMAINE DUNSON,
Petitioner,
v.
VANCE LAUGHLIN, Warden,
Respondent.

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By tblanchard at 2:59 pm, Jun 15, 2017

CV417-087

REPORT AND RECOMMENDATION
Joshua Jermaine Dunson filed a defective 28 U.S.C. § 2254
petition -- he failed to sign it and left a couple of pages blank. Doc. 1
(petition); doc. 4 (Order pointing that out). He also failed to answer
Question 18 -- “Timeliness of Petition.”

Doc. 1 at 13.

That was

conspicuous because he was convicted of various crimes1 on April 27,
2009, id. at 1, and there was little to suggest that he could surmount 28
U.S.C. § 2244(d)(1)’s one-year limitations clock.

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“A jury found Joshua Dunson guilty of kidnapping with bodily injury, aggravated
child molestation, aggravated anal sodomy, child molestation, enticing a child for
indecent purposes, and cruelty to children. Dunson appeal[ed], raising numerous
claims of error.” Dunson v. State, 309 Ga.App. 484, 484 (2011). The Georgia Court
of Appeals affirmed. Id. Dunson cites no further direct appeal.

The Court gave him another chance. Doc. 4. Dunson has since
signed the signature page and answered Question 18, doc. 7, revealing
that he exhausted his direct appeal in 2011, see supra n. 2, but sought
no state habeas relief until September 14, 2015. Doc. 1 at 3. Yet, he
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 is no period remaining
to be tolled); Nowill v. Barrow, 2013 WL 504626 at * 1 n. 3 (S.D.
Ga. Feb. 8, 2013).

Jackson v. McLaughlin, 2017 WL 1313789 at * 1 (S.D. Ga. Apr. 5, 2017),
adopted, 2017 WL 1848475 at * 1 (S.D. Ga. May 8, 2017) (rejecting
§ 2254 petitioner’s claim “that he suffers from mental health problems.
This is insufficient and Petitioner is not entitled to equitable tolling.”).
By waiting until September 14, 2015 to resume moving the ball
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from a 2011-finalized appeal, Dunson ran out that one-year clock. In
his Question 18 answer, he insists that the clock was stopped in time
because he raised new claims in state court “but [they] were not
addressed on their merits.” Doc. 7 at 1. But he still had to keep the ball
rolling (i.e., challenge all merits/non-merits rulings within the state
appeal channels, then timely present them to this Court). He failed to
do that during the 2011-2015 time period, and that gap was fatal.
Dunson’s § 2254 petition therefore must be DISMISSED WITH
PREJUDICE.
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 14 days of

service, any party may file written objections to this R&R with the
Court and serve a copy on all parties.
captioned

“Objections

to

Magistrate

The document should be
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.
After the objections period has ended, the Clerk shall submit this
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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 15th day of June,
2017.

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