Alexander v. Hall et al

Filing 20

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent Samuel S. Olens' 13 MOTION to Dismiss as a Party Respondent, GRANT Respondent's 11 MOTION to Dismiss, DISMISS Alexander's Petition, and CLOSE thi s case. I also RECOMMEND that the Court DENY Alexander a Certificate of Appealability and DENY in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections with in fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 3/20/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/6/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

JOHN T. ALEXANDER,
Petitioner,

CIVIL ACTION NO.: 5:15-cv-72

v.
WARDEN HILTON HALL; and SAMUEL
S.OLENS,
Respondents.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant John T. Alexander (“Alexander”), who is currently incarcerated at Coffee
Correctional Facility in Nicholls, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 challenging his convictions obtained in the Camden County, Georgia, Superior
Court.

(Doc. 1.)

Homer Bryson, former Commissioner of the Georgia Department of

Corrections, filed a Motion to Intervene as Party Respondent, (doc. 12), and Respondent Samuel
S. Olens filed a Motion to Dismiss as Party Respondent, (docs. 13). In addition, Respondent
Bryson filed an Answer-Response and a Motion to Dismiss, (docs. 10, 11). Alexander filed a
Response to Respondents’ Motion to Dismiss. (Doc. 18.) For the reasons which follow, the
Court GRANTS former Commissioner Bryson’s Motion to Intervene as Party Respondent. 1
(Doc. 12.) I RECOMMEND that the Court GRANT Respondent Samuel S. Olens’ Motion to
Dismiss as a Party Respondent, (doc. 13), GRANT Respondent’s Motion to Dismiss, (doc. 11),

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The Clerk of Court is AUTHORIZED and DIRECTED to change the name of the Respondent to
Gregory C. Dozier, the current Commissioner of the Georgia Department of Corrections, upon the docket
and record of this case.

DISMISS Alexander’s Petitioner, and CLOSE this case. I also RECOMMEND that the Court
DENY Alexander a Certificate of Appealability and DENY in forma pauperis status on appeal.
BACKGROUND
Alexander was convicted on August 27, 2008, after entering a guilty plea, in the Camden
County, Georgia, Superior Court of two counts of child molestation. (Doc. 14-2, pp. 1–2.)
Pursuant to Alexander’s negotiated plea agreement, he received a split sentence of twenty (20)
years, with ten (10) years to be served in prison, followed by ten (10) years’ probation. (Id.)
Alexander did not file a direct appeal.
Alexander filed a state habeas corpus petition in the Coffee County, Georgia, Superior
Court on September 17, 2012. (Doc. 14-1.) Alexander asserted that his guilty plea was not
entered into knowingly and voluntarily, that he was denied effective assistance of counsel, and
that the trial court violated his due process rights. (Id. at 4.) Following an evidentiary hearing
on November 13, 2013, the state habeas court denied relief on September 22, 2014. (Doc. 14-2.)
The Georgia Supreme Court denied Alexander’s application for a certificate of probable cause to
appeal the state habeas court’s denial of relief on March 30, 2015. (Doc. 14-4.)
DISCUSSION
Alexander filed this federal petition for writ of habeas corpus on September 9, 2015.
(Doc. 1.)

Alexander challenges his Camden County convictions on two grounds.

First,

Alexander alleges ineffective assistance of counsel, citing his attorney’s failure to interview
witnesses and failure to advise Alexander of his right to appeal his conviction. (Id. at p. 7.)
Second, Alexander alleges that his guilty plea was not knowing or voluntary. (Id.) Respondent
avers Alexander’s petition was untimely filed and should, therefore, be dismissed. (Doc. 11.)

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I.

Motion to Intervene, (doc. 12), and Motion to Dismiss as a Party Respondent, (doc.
13)
Plaintiff named Hilton Hall, Warden of Coffee Correctional Facility, and Samuel S.

Olens, Attorney General of the State of Georgia, as Respondents in this action. Homer Bryson,
former Commissioner of the Georgia Department of Corrections, filed a motion with the Court to
intervene in the present matter, (doc. 12), and Respondent Samuel S. Olens filed a Motion to
Dismiss as a party Respondent, (doc. 13). The only proper respondent in this Section 2254
action is the state officer having custody of the petitioner. See Rule 2(a) of the Rules Governing
Section 2254 Cases. Because the Commissioner of the Department of Corrections is the state
entity in charge of Georgia’s penal institutions, including Coffee Correctional Facility, a
privately-run contract facility, Warden Hilton Hall and Samuel S. Olens are not proper
respondents in this case and should be dismissed. See O.C.G.A. § 42–2–6; Clemons v. Owens,
No. CV 114-129, 2015 WL 858390, at *2 (S.D. Ga. Feb. 27, 2015).
Therefore, after careful consideration and for good cause shown, the Court GRANTS
former Commissioner Homer Bryson’s Motion to Intervene. (Doc. 12.) Because Gregory C.
Dozier is the current Commissioner of the Georgia Department of Corrections, the Clerk of
Court is AUTHORIZED and DIRECTED to change the name of the Respondent to Gregory C.
Dozier, Commissioner of the Georgia Department of Corrections, upon the docket and record of
this case. Consequently, I RECOMMEND that the Court GRANT Respondent Olens’ Motion
to Dismiss as a Party Respondent, (doc. 13), and DISMISS Warden Hilton Hall and Samuel S.
Olens as Respondents.
II.

Whether Alexander’s Petition was Timely Filed
Respondent raised the issue of the timeliness of Alexander’s petition in his Motion to

Dismiss. (Doc. 11.) To determine whether Alexander’s Petition was filed in a timely manner,

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the Court must look to the applicable statute of limitations periods. A prisoner must file a
petition for writ of habeas corpus in federal court within one (1) year. 28 U.S.C. § 2244(d)(1).
This statute of limitations period shall run from the latest of four possible dates:
(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.
Id.
Alexander’s conviction became final at the time of his completion of the direct review
process or when the time for seeking such review became final. 28 U.S.C. § 2244(d)(1)(A);
Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000). Alexander was convicted in the Camden
County Superior Court on August 27, 2008. Alexander had a period of thirty (30) days to file a
notice of appeal. O.C.G.A. § 5-6-38(a) (“A notice of appeal shall be filed within 30 days after
entry of the appealable decision or judgment complained of[.]”). Alexander did not file an
appeal, and, accordingly, his conviction became final on September 26, 2008.

Because

Alexander’s conviction became final on September 26, 2008, he had one year from that date in
which to file a timely federal habeas petition. 28 U.S.C. § 2244(d)(1).
The applicable statute of limitations is tolled during “[t]he time . . . which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending.” 28 U.S.C. §2244(d)(2) (emphasis supplied); Taylor v. Williams,
528 F.3d 847, 849 (11th Cir. 2008). “[A]n application is pending as long as the ordinary state
collateral review process is in continuance– i.e., until the completion of that process. In other
words, until the application has achieved final resolution through the State’s post-conviction
procedures, by definition it remains pending.” Carey v. Saffold, 536 U.S. 214, 219–20 (2002)
(internal citations omitted). A petitioner should be mindful that “once a deadline has expired,
there is nothing left to toll. A state court filing after the federal habeas deadline does not revive”
the statute of limitations period applicable to section 2254 petitions. Sibley v. Culliver, 377 F.3d
1196, 1204 (11th Cir. 2004); see also Alexander v. Sec’y, Dep’t of Corr., 523 F.3d 1291, 1294
(11th Cir. 2008) (a state court motion for post-conviction relief cannot toll the federal limitations
period if that period has already expired).
As noted above, Alexander’s conviction became final on September 26, 2008. He had
one year from that date to file a 28 U.S.C. § 2254 petition for writ of habeas corpus or a properly
filed application for state post-conviction or other collateral review. Alexander filed his state
habeas corpus petition on September 17, 2012, which was nearly four years after his conviction
became final. (Doc. 14-1.) By that time, the statute of limitations period applicable to Section
2254 petitions had expired, and the filing of his state habeas corpus petition did not toll or revive
the federal statute of limitations. Therefore, Alexander’s 28 U.S.C. § 2254 petition was not
timely filed.
Having determined that statutory tolling is not available to Alexander, the Court must
now decide whether he is entitled to equitable tolling of the statute of limitations. A petitioner
seeking equitable tolling must establish “that he has been pursuing his rights diligently” and “that
some extraordinary circumstance stood in his way” which prevented him from timely filing his

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Section 2254 petition.

Lawrence v. Florida, 549 U.S. 327, 335 (2007) (citing Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). Equitable tolling is “an extraordinary remedy that
must be applied sparingly[,]” and a petitioner must present a “truly extreme case.” Holland v.
Florida, 539 F.3d 1334, 1338 (11th Cir. 2008), overruled on other grounds by Holland v. Florida,
560 U.S. 631 (June 14, 2010). “‘The burden of establishing entitlement to this extraordinary
remedy plainly rests with the petitioner.’” Id. (quoting Drew v. Dep’t of Corr., 297 F.3d 1278,
1286 (11th Cir. 2002)).
Alexander arguably avers that he is entitled to equitable tolling of the statute of
limitations. Alexander contends that both his ignorance of the statute of limitations period
applicable to Section 2254 petitions and his mental illness prevented him from diligently
pursuing this habeas petition. (Doc. 18, p. 1.) While the Court accepts Alexander’s contention
that he was unaware of the applicable statute of limitations for filing a Section 2254 petition and
that he suffers from depression and anxiety, “a lack of a legal education and related confusion or
ignorance about the law [are not] excuses for a failure to file in a timely fashion.” Perez v.
Florida, 519 F. App’x 995, 997 (11th Cir. 2013).

Furthermore, a contention of mental

incompetence, “without more, is insufficient to justify equitable tolling.” Lawrence, 421 at 1227
(citing Bilbrey v. Douglas, 124 F. App’x 971, 973 (6th Cir. 2005) (finding that equitable tolling
did not apply because petitioner “failed to establish a causal connection between her mental
condition and her ability to file a timely petition”)).
Accordingly, because Alexander’s ignorance of the law and his mental illness cannot
excuse his untimely filing, he is not entitled to equitable tolling. Consequently, Alexander’s
Section 2254 Petition was filed untimely and is subject to dismissal.

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III.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Alexander leave to appeal in forma pauperis and deny him a

Certificate of Appealability (“COA”). Though Alexander has, of course, not yet filed a notice of
appeal, it would be appropriate to address these issues in the Court’s order of dismissal.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the district court must issue or
deny a certificate of appealability when it issues a final order adverse to the applicant.”
(emphasis supplied); see also Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a Certificate of Appealability is issued.

A Certificate of

Appealability may issue only if the applicant makes a substantial showing of a denial of a

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constitutional right. The decision to issue a Certificate of Appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a Certificate of Appealability, a petitioner must
show “that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Alexander’s Petition and Respondent’s Motion to Dismiss
and applying the Certificate of Appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
Certificate of Appealability. Furthermore, as there are no non-frivolous issues to raise on appeal,
an appeal would not be taken in good faith. Thus, the Court should likewise DENY Alexander
in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, the Court GRANTS former Commissioner Bryson’s Motion to
Intervene as Party Respondent.

(Doc. 12).

I RECOMMEND that the Court GRANT

Respondent Samuel S. Olens’ Motion to Dismiss as a Party Respondent, (doc. 13), GRANT
Respondent’s Motion to Dismiss, (doc. 11), DISMISS Alexander’s Petitioner, and CLOSE this
case. I also RECOMMEND that the Court DENY Alexander a Certificate of Appealability and
DENY in forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Alexander and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 6th day of March,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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