HITES v. TAYLOR

Filing 14

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 11 MOTION to Dismiss, DISMISS Hites' 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, and DIRECT the Clerk to enter the appropriate judgment of dismissal and CLOSE this case. It is further RECOMMENDED that the Court DENY Hites leave to proceed in forma pauperis status on appeal and a Certificate of Appealability. The Court ORDERS any party seeking to object to this Re port and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/30/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/16/2018. (ca)

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

JOHN THURSTON HITES,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-143

v.
WARDEN CEDRICK B. TAYLOR,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner John Thurston Hites (“Hites”), currently incarcerated at Baldwin State Prison
in Hardwick, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
challenging his conviction and sentence obtained in the Superior Court of Atkinson County,
Georgia. (Doc. 1.) Respondent filed an Answer-Response and a Motion to Dismiss. (Docs. 10,
11.) Hites filed a Response to the Motion to Dismiss. (Doc. 13.) For the reasons set forth
below, I RECOMMEND the Court GRANT Respondent’s Motion, DISMISS Hites’ Petition,
DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and CLOSE this
case, and DENY Hites in forma pauperis status on appeal and a Certificate of Appealability.
BACKGROUND
After a jury trial in November 2011, Hites was found guilty of felony murder and
aggravated assault. (Doc. 1, p. 1; Doc. 11-1, p. 1); see also Hites v. State, 769 S.E.2d 364 (Ga.
2015). On November 17, 2011, the trial court sentenced Hites to life in prison, and the Georgia
Supreme Court affirmed. Id. at 367 n.1, 370. On December 13, 2016, Hites executed a state
habeas corpus petition challenging his felony murder conviction in the Superior Court of

Baldwin County, Georgia. (Doc. 12-1, p. 18.) After an evidentiary hearing, the Baldwin County
court denied Hites’ petition on November 6, 2017. (Doc. 12-2.) Hites did not file a motion for
reconsideration or an appeal of this denial.

Hites executed this Section 2254 Petition on

September 18, 2017, and it was filed in this Court on September 21, 2017. (Doc. 1.)
DISCUSSION
In his Petition, Hites alleges that his trial and appellate counsel rendered ineffective
assistance. (Doc. 1-1.) Respondent contends that Hites untimely filed his Section 2254 Petition
because he did not file it within one year of his Atkinson County conviction being “final.”
(Doc. 11-1, p. 4.) Hites filed a Response arguing that the Court should overlook his untimely
filing because his appellate counsel inaccurately advised Hites as to when he could timely file a
state and federal habeas petition. (Doc. 13, p. 2.)
I.

Whether Hites Timely Filed his Petition
A petitioner seeking to file a federal habeas petition has one year within which to file his

petition. 28 U.S.C. § 2244(d)(1). The 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.

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Hites’ 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). Hites was sentenced in the Atkinson County
Superior Court on November 17, 2011. (Doc. 1, p. 1.) On February 16, 2015, the Georgia
Supreme Court affirmed Hites’ Atkinson County convictions and sentence. (Id. at p. 2); Hites,
769 S.E.2d at 367. Hites had ninety (90) days to file a petition for a writ of certiorari to the
United States Supreme Court. Sup. Ct. R. 13. Hites did not file a writ of certiorari, and thus, his
conviction became final after the 90 days elapsed on Monday, May 18, 2015. Hites had one year
from that date 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
judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); 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).

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As noted above, Hites’ conviction became final on May 18, 2015. He had one year from
that date, or until May 18, 2016, to file a 28 U.S.C. § 2254 petition for writ of habeas corpus.
Hites executed his state habeas corpus petition on December 13, 2016, (doc. 12-1, p. 18), nearly
seven months after his conviction became final. By that time, the statute of limitations period
applicable to Section 2254 petitions had expired. Consequently, the filing of his state habeas
corpus petition, though timely under Georgia law, did not toll the federal statute of limitations.
Sibley, 377 F.3d at 1204; see also Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A
state-court petition . . . that is filed following the expiration of the [federal] limitations period
cannot toll that period because there is no period remaining to be tolled.”). 1 On its face, Hites’
Petition was untimely filed. However, the Court must now determine whether the applicable
statute of limitations period was equitably tolled.
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 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), rev’d on other grounds, 560 U.S. 631
(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)).

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Although Georgia law generally provides four years for individuals to timely file habeas petitions,
O.C.G.A. § 9-14-42(c), Section 2244, and not state law, governs the parameters of the federal statute of
limitations. “[P]etitioners are free to file, or not file their state habeas petitions within the year following
the date their convictions become final . . . . As such, there is no element of punishment or retaliation in
the [Antiterrorism and Effective Death Penalty Act’s] one-year statute of limitations, which potentially
time-bars federal habeas corpus petitions filed by Georgia inmates, who may have timely filed their state
habeas corpus petitions.”
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Hites alleges that he untimely filed his habeas petition because his appellate counsel
incorrectly advised him that he had “3 years from the time the appeal was denied to file a state
habeas corpus. . . [and] if the state habeas corpus was denied then he would have 1 year to file a
federal habeas corpus.” (Doc. 13, p. 2.) However, “[a]ttorney miscalculation is simply not
sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel.” Lawrence, 549 U.S. at 336–37 (citing Coleman v.
Thompson, 501 U.S. 722, 756–57 (1991)); see also Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216,
1232 (11th Cir. 2017) (citing Lawrence for the proposition that an attorney missing a filing
deadline because he “failed to do even rudimentary research” is insufficient to warrant equitable
tolling, especially in the postconviction context). Furthermore, Hites “cannot establish his own
due diligence in ascertaining the applicable limitations period.” Helton v. Sec’y for the Dep’t of
Corr, 259 F.3d 1310, 1313 (11th Cir. 2001). When counsel notified Hites of the applicable
statute of limitations, Hites was put “on notice of the need to check the federal habeas provision
himself. Having failed to do so, [Hites] cannot now claim ‘extraordinary circumstances’ to
justify equitable tolling of [Antiterrorism and Effective Death Penalty Act’s] statute of
limitations.” Id. Accordingly, Hites has not met his burden establishing his entitlement to
equitable tolling.
For all of these reasons, the Court should GRANT Respondent’s Motion to Dismiss and
DISMISS Hites’ Petition as untimely filed.
II.

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

Certificate of Appealability. Though Hites 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

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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. County 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). 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).
Based on the above analysis of Hites’ Petition and Respondent’s Motion, there are no
non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY Hites in forma pauperis status on appeal.
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
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,

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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.
Applying the Certificate of Appealability standards set forth above, there are no
discernable issues worthy of a certificate of appeal and the Court should DENY the issuance of a
Certificate of Appealability.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 11), DISMISS Hites’ Petition for Writ of Habeas Corpus, filed pursuant to 28
U.S.C. § 2254, (doc. 1), and DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and CLOSE this case. I further RECOMMEND that the Court DENY Hites leave to
proceed in forma pauperis and a Certificate of Appealability.
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

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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.
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
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 the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 16th day of July, 2018.

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

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