Stone v. Medlin

Filing 14

ORDER granting 4 Motion to Dismiss; adopting re 11 Report and Recommendations and dismissing the petition for writ of habeas corpus. Signed by Judge B. Avant Edenfield on 1/14/13. (bcw)

F1LFO
U.S. Dl5T
23 JAN 11+
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA U
STATESBORO DIVISION

'so.

1iO:

01ST. OF GA.

DUNCAN STONE,
Petitioner,
CIVIL ACTION NO.: CV612-084

JASON MEDLIN, Warden, and
BRIAN OWENS, Commissioner,
Respondents

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
have been filed. In his Objections, Petitioner Duncan Stone ("Stone") contends that
April 21, 2009, should be considered the date he mailed his state habeas corpus
petition, as the stamp from the notary public demonstrates that this is the date he
mailed his petition. The Court recognizes that there are several pages of Stone's state
habeas corpus petition bearing April 21, 2009. (Doc. No. 9-1, pp. 5, 7-8). However, the
certificate of service attached to Stone's petition is dated April 28, 2009 (the date the
Magistrate Judge cited), and this certificate states, "Service was made by placing the
same in an envelope, . . ., and on this day mailed to the party(s) as follows[.]" (Id. at p.

AO 72A
(Rev. 8/82)

20) (emphasis added). The date a prisoner's pleading is considered "filed" is the date a
prisoner places the pleading in the prison mailing system for forwarding to a court, not
necessarily the date the prisoner signs the pleading. Houston v. Lack, 487 U.S. 266,
270 (1988). In this case, April 28, 2009, is the date petitioner "filed" his state habeas
corpus petition, as there is nothing before the Court which establishes Stone placed his
state habeas corpus petition in the prison mail system on a date other than April 28,
2009. Additionally, and contrary to Stone's assertion, the statute of limitations period
would not have been tolled for the ten (10) day period he had under Georgia Supreme
Court Rule 27 to file a motion for reconsideration of the Georgia Supreme Court's denial
of his application for certificate of probable cause to appeal the denial of his state
habeas corpus petition. Hall v. Humphrey, 155 F. App'x 441, 444 (11th Cir. 2005)
(noting the petitioner's statute of limitations period was not tolled during the time the
petitioner could have sought review of a certificate of probable cause denial or moved
for reconsideration of that denial); but, see, Jones v. Johnson, 2012 WL 1094711, at *5
(M.D. Ga. Mar. 30, 2012) (questioning whether Hall "is sound authority for the
proposition" that the statute of limitations is not tolled during the time in which a
petitioner could have moved for reconsideration). Even if the statute of limitations
period had been tolled for these ten (10) days, Stone's petition was filed seven (7) days
too late.
Stone's Objections are

The Magistrate Judge's Report and

overruled.

Recommendation, as supplemented herein, is adopted as the opinion of the Court.
Respondent's Motion to Dismiss is GRANTED.

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(Rev. 8/82)

2

Stone's petition for writ of habeas

corpus, filed pursuant to 28 U.S.C. § 2254, is DISMISSED, with prejudice. The clerk of
Court is directed to enter the appropriate judgment of dismissal.
SO ORDERED, this /t'( day of

,2013.

B. AVIIT EDEN1L JVOGE
UNITED STATES DI)tRIOT COURT
SOUTHERN DISTRIIT OF GEORGIA

Ad 72A

(Rev. 8/82)