Smith v. Danforth

Filing 15

ORDER granting 8 Motion to Dismiss; adopting re 12 Report and Recommendations. Signed by Judge B. Avant Edenfield on 9/16/2013. (loh)

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

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c)
CHARLIE LEE SMITH,

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Petitioner,
CIVIL ACTION NO.: CV613-056
WILLIAM DAN FORTH, 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
have been filed. In his Objections, Smith essentially reasserts his argument presented
in his 28 U.S.C. § 2254 petition that the four-year statute of limitations applicable to
state habeas corpus petitions under Georgia law tolled the federal statute of limitations
for his § 2254 petition. Smith asserts:
'that he has been pursuing his rights diligently' and that 'some
extraordinary circumstance stood in his way' which prevented him from
timely filing his § 2254 petition
The circumstance that stood in
[Smith's] way from filing a federal habeas corpus was his having to
exhaust his state remedies.
(Doc. No. 14, pp. 1-2).

AO 72A
(Rev. 8/82)

Smith's objections are without merit. Smith misstates the procedural interplay of
the statute of limitations applicable to state and federal habeas corpus petitions. As
the Magistrate Judge explained, the applicable statute of limitations for a § 2254
petition is tolled during "[tjhe time . . . which a properly filed application for State postconviction 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). Thus, had Smith initiated the appropriate state postconviction review process prior to the expiration of the federal statute of limitations, the
time period in which he had to file his § 2254 petition would have been tolled until the
state post-conviction process concluded.
Smith has not shown he is entitled to equitable tolling of the one-year statute of
limitations period applicable to § 2254 petitions. "In order to be entitled to the benefit of
equitable tolling, a petitioner must act with diligence, and the untimeliness of the filing
must be the result of circumstances beyond his control." Drew v. Dep't of Corr., 297
F.3d 1278, 1286-87 (11th Cir.2002). Smith did not file his state habeas corpus petition
until nearly one year after the expiration of the federal statute of limitations period.
Smith fails to show that any circumstance - extraordinary or otherwise - prevented him
from pursuing his claims earlier than he did.

AO 72A
(Rev. 8182)

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The Magistrate Judge's Report and Recommendation is adopted as the opinion
of the Court. Respondent's Motion to Dismiss is GRANTED. Lynn's petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254, is DENIED. The Clerk of Court is
directed to enter the appropriate judgment of dismissal.
,2013.

SO ORDERED, this /day of

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UNITED STATES DIS ICT COURT
SOUTHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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