WALLACE v. Holt

Filing 21

ORDER ADOPTING 18 the Magistrate Judge's Report and Recommendations, and GRANTING 15 Respondent's Motion to Dismiss. Wallace's Objections are OVERRULED. Wallace's petition for writ of habeas corpus is DISMISSED, with prejudice. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 4/5/2013. (csr)

FILED
U.S. DISTRICT COOl
E•fn ow.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

2I3 APR-8 A 8: 5
CLER

JO. O3

'r

JACK RAY WALLACE,
Petitioner,
CIVIL ACTION NO.: CV512-135

V.

AHMED HOLT, Warden,
Respondent.

ORDER
After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections
were filed. In his Objections, Petitioner Jack Wallace ("Wallace") contends that his
motion for appointment of counsel should have been granted. To the extent this is an
appeal of the Magistrate Judge's Order denying Wallace's motion for appointment of
counsel, Wallace's appeal is denied. The Magistrate Judge's Order, (Doc. No. 12), is
neither clearly erroneous nor contrary to law.

FED. R. Civ. P. 72(a). In addition,

Wallace's appeal of the Magistrate Judge's Order is untimely. j.cj.
Wallace seemingly asserts that his current 28 U.S.C. § 2254 petition was timely
filed based on a Georgia case decided in 2010. Even if Wallace's assertion were to set
a new trigger date for statute of limitations purposes, his petition, which was filed on

AO 72A
(Rev. 8/82)

November 6, 2012, would be untimely.' No matter what triggering date is used,
Wallace's petition would have to have been filed no later than December 31, 2011, to be
considered timely based on his application of a 2010 Georgia case, assuming that this
case is even applicable to Wallace.
Wallace also objects to the Magistrate Judge's footnote regarding second or
successive petitions. Wallace is advised that, in order to file a second or successive
petition in this Court (or any other district court), he would have to seek permission from
the Eleventh Circuit Court of Appeals to do so. It is only after the Eleventh Circuit
grants a petitioner's motion to file a second or successive petition in district court that
this Court could consider the merits of Wallace's petition.
Wallace's Objections are overruled.

The Magistrate Judge's Report and

Recommendation, as supplemented herein, is adopted as the opinion of the Court.
Respondent's Motion to Dismiss is GRANTED. Wallace's petition for writ of habeas
corpus, filed pursuant to 28 U.S.C. § 2254, is DISMISSED, with prejudice, as it was not

The limitation period applicable to section 2254 petitions shall run from the latest of—
(A) the date on which the judgment of conviction becomes final by the conclusion of direct
review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application by State action in violation of
the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).

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(Rev. 8182)

2

filed timely. The Clerk of Court is directed to enter the appropriate judgment of
dismissal.
SO ORDERED, this

5

/7\.

day of

, 2013.

AGQDBEY WOOD, CHIEF JUDGE
ITED STATES DISTRICT COURT
UTHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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