Smith v. Unnamed Respondent

Filing 16

ORDER granting 10 Motion to Dismiss; adopting re 13 Report and Recommendations dismissing this petition. Signed by Judge B. Avant Edenfield on 3/25/2014. (loh)

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

JOHNNY SMITH,
Petitioner,
CIVIL ACTION NO.: CV613-090

V.

BRUCE CHATMAN, Warden, and
UNNAMED RESPONDENT,

I

Respondents.

ORDER

I

After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Petitioner
Johnny Smith ('Smith") filed Objections. Smith contends that: (1) he is procedurally
barred by default" for 'not filing his motion to vacate timely" and that such procedural
default is a result of ineffective assistance of counsel; (2) the Sixth Amendment requires
this default to be imputed to the state; (3) and that due diligence is not a factor in
determining whether he is entitled to equitable tolling. (Doc. 15, pp. 2-3).
Smith's reliance on Coleman v. Thompson, 501 U.S. 722 (1991), is misplaced. In
Coleman, the petitioner filed an untimely appeal of his state habeas proceedings, which
was dismissed. 501 U.S. at 727. He then filed a petition for writ of habeas corpus in
the federal district court, asserting four claims previously raised on direct appeal and
seven claims raised for the first time in state habeas. Id. at 728. The district court

AO 72A
(Rev, 8/82

determined that the seven claims were procedurally defaulted; the Fourth Circuit Court
of Appeals and the United States Supreme Court affirmed.

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at 728-29.

Smith's claims were not procedurally defaulted as those in Coleman, nor is it
necessary for Smith to establish cause in order to excuse a default. Smith's federal
habeas petition is barred as untimely. In order for a petitioner to be entitled to equitable
tolling, he must establish both extraordinary circumstances beyond the petitioner's
control and due diligence. As the Magistrate Judge correctly noted, Smith failed to
demonstrate either requirement.
Smith is not entitled to statutory tolling or equitable tolling and his Objections are
overruled.

The Magistrate Judge's Report and Recommendation is adopted as the

opinion of the Court. Respondent's Motion to Dismiss is GRANTED. Smith's 28 U.S.C.
§ 2254 petition is DISMISSED. The Clerk of Court is directed to enter the appropriate
judgment of dismissal.
SO ORDERED, this

r­

, 2014.

of

AVWV EDENFIELD, JJ DGE
UNITED STATES DIST$'CT COURT
SOUTHERN DISTRICT OF GEORGIA

AO 72A

(Rev. 8/82)

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