Stone v. Medlin

Filing 20

ORDER denying 17 Motion for Certificate of Appealability; denying 18 Motion for Leave to Appeal in forma pauperis. Signed by Judge B. Avant Edenfield on 2/19/13. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
DUNCAN STONE,
Petitioner,
6:12-cv-84

V.

JASON MEDLIN, Warden, and BRIAN
OWENS, Commissioner,
Respondents.
[I) 1 0 DI !
I. INTRODUCTION
Duncan Stone has appealed this Court's
Order dismissing his 28 U.S.C. § 2254
petition for writ of habeas corpus. See ECF
Nos. 14; 16. Stone has requested a
Certificate of Appealability ("COA"), ECF
No. 17, and leave to appeal in forma
pauperis ("IFP"). ECF No. 18. For the
reasons discussed below, both requests are
DENIED.
II. ANALYSIS
"Before an appeal may be entertained, a
prisoner who was denied habeas relief in the
district court must first seek and obtain a
COA . . ." Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003); see 28 U.S.C.
§ 2253(c). The Court will issue a COA
"where a petitioner has made a substantial
showing of the denial of a constitutional
right." Miller-El, 537 U.S. at 336; see also
28 U.S.C. § 2253(c)(2). Petitioner "must
show that reasonable jurists could debate
whether (or, for that matter, agree that) the
petition should have been resolved in a
different manner or that the issues presented

were adequate to deserve encouragement to
proceed further." Id. (internal quotations
omitted).
When the district court denies a
habeas petition on procedural
grounds without reaching the
prisoner's underlying constitutional
claim, a COA should issue when the
prisoner shows, at least, that jurists
of reason would find it debatable
whether the petition states a valid
claim of the denial of a constitutional
right and that jurists of reason would
find it debatable whether the district
court was correct in its procedural
ruling.
Slack v. McDaniel, 529 U.S. 473, 484
(2000) (emphasis added).
Here, Stone filed his § 2254 petition on
September 6, 2012. ECF No. 1 at 15. In his
Report and Recommendation ("R&R"), the
Magistrate Judge found that the deadline for
Stone to file his petition was August 20,
2012, and therefore, recommended that
Stone's petition be dismissed as untimely.
ECF No. 11. The Magistrate Judge further
found that Stone "offer[ed] no valid
explanation for his untimely filing," and
therefore failed to show that he diligently
pursued his rights or was encumbered by
some extraordinary circumstance. Id. at 5.
As such, the Magistrate Judge also found
that Stone was not entitled to equitable
tolling of the statute of limitations. Id
Stone objected to the R&R, erroneously
arguing that April 21, 2009, not April 28,
2009, was the date that his previous state
habeas petition should have been considered
mailed, thus tolling the statute of limitations

,.1

was purely legal in nature and does nothing
to demonstrate Stone's factual innocence.
Stone's remaining attempt to demonstrate
factual innocence is a mere recitation of his
version of what happened the night of the
crime and his attempt to discredit the
victim's trial testimony. See ECF No. 17.
But the jury already heard Stone's version of
events, the victim's testimony, and Stone's
cross-examination of the victim at trial, and
decided that there was enough evidence to
find Stone guilty beyond a reasonable doubt.
Stone cannot show actual innocence by
disagreeing with the jury's findings of fact
based on evidence heard at trial, and he
presents no new facts that demonstrate
actual innocence. Stone falls to make the
showing required for the actual innocence
exception to apply to his untimely petition.

a week earlier. ECF No. 13. After finding
"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," the Court then noted
that "[e]ven if the statute of limitations
period had been tolled [since April 21,
2009], Stone's petition was [still] filed seven
(7) days too late." ECF No. 14 at 2. Thus,
the Court adopted the R&R and dismissed
Stone's petition. Id. at 2-3.
Stone now argues that he "is due Federal
Habeas Relief in spite of a Procedural
Default, based on the 'Actual Innocence'
doctrine." ECF No. 17 at 1.
"A court may. . . consider an untimely §
2254 petition if, by refusing to consider the
petition for untimeliness, the court thereby
would endorse a 'fundamental miscarriage
of justice' because it would require an
individual who is actually innocent remain
imprisoned." San Martin v. McNeil, 633
F.3d 1257, 1267-68 (11th Cir. 2011) (citing
Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir. 2001)). This actual innocence
exception, however, is "exceedingly narrow
in scope," and requires the petitioner to
"demonstrate that he is factually innocent
rather than legally innocent." Id. This,
Stone fails to do.

Despite whether Stone has stated a
debatably valid claim of the denial of a
constitutional right, the procedural bar
remains, and he fails to state how jurists of
reason would find the Court's procedural
ruling debatable. Accordingly, Stone's
request for COA, ECF No. 17, is DENIED.
The Court now moves on to Stone's
request for leave to appeal IFP. "An appeal
may not be taken [IFP] if the trial court
certifies in writing that it is not taken in
good faith." 28 U.S.C. § 1915(a)(3). Good
faith means that an issue exists on appeal
that is not frivolous when judged under an
objective standard. See Coppedge v. United
States, 369 U.S. 438, 445 (1962); Busch v.
Cnty. of Volusia, 189 F.R.D. 687, 691 (M.D.
Fla. 1999). A claim is frivolous if it is
"without arguable merit either in law or
fact." Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001).

The primary constitutional issue raised
by Stone in his habeas petition and
reasserted by him in his COA request is that
at trial, an alternate juror initially deliberated
with the jury, requiring a curative instruction
from the trial judge who then sent the
correct twelve jurors out to "deliberate
anew." See ECF Nos. 1; 17. Despite the
concerns raised by this mistake, the error
2

For the reasons stated above, Stone's
claim is barred by the statute of limitations.
Stone seeks to appeal the Court's ruling on
that timing issue, but he states no argument
of any merit, either in law or fact, to get
around that bar. He no longer attempts to
argue that the Court erred in its finding of no
statutory or equitable tolling of the statute of
limitations, and rests his entire appeal on an
actual innocence claim. ECF No. 17. But
Stone's attempt to show actual innocence is
meritless. Therefore, Stone's claims are
frivolous and his appeal is not taken in good
faith. Accordingly, his request for leave to
appeal IFP, ECF No. 18, is DENIED.
III. Conclusion
Stone's requests for COA, ECF No. 17,
and for leave to appeal IFP, ECF No. 18, are
both DENIED. The Court assesses the full
filing fee of $455.

This A day of February 2012.
Li

B.'AVAN'II' 1DENFIELD, JU?1EORGIA
GE
UNITED STATES DISTRICCOURT
SOUTHERN DISTRICT OF

3