Henry v. Toole

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the 1 Petition for Writ of Habeas Corpus be DISMISSED and that the Court GRANT Respondent's 6 MOTION to Dismiss. It is further recommended that the Court DENY a Certificate of A ppealability and DENY Henry in forma pauperis status on appeal. Any party seeking to object to this Report and Recommendation is ordered 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 2/3/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 1/20/2016. (csr)

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

TIMOTHY ALBERT HENRY,
Petitioner,

CIVIL ACTION NO.: 6:15-cv-47

v.
WARDEN ROBERT TOOLE,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Timothy Henry (“Henry”), who is currently incarcerated at Ware State Prison
in Waycross, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
challenging his convictions obtained in the Emanuel County, Georgia, Superior Court. (Doc. 1.)
Respondent filed an Answer-Response and a Motion to Dismiss, (docs. 5, 6), and Henry filed an
Objection to Respondent’s Motion to Dismiss. (Doc. 9.) For the reasons which follow, I
RECOMMEND that the Court GRANT Respondent’s Motion, DISMISS Henry’s Section 2254
Petition, and CLOSE this case. I also RECOMMEND the Court DENY a Certificate of
Appealability and DENY Henry in forma pauperis status on appeal.
BACKGROUND
Henry was found guilty of two counts of aggravated child molestation, two counts of
aggravated sodomy, and one count of child molestation, in violation of O.C.G.A. § 16-5-24, in
the Emanuel County Superior Court on January 12, 2010. (Doc. 1, p. 3.) He was sentenced to
two life sentences without parole to be served consecutively. (Id.) Henry filed a direct appeal,
and the Georgia Court of Appeals affirmed his convictions and sentence on June 7, 2012. Henry

v. State, 729 S.E.2d 429 (Ga. Ct. App. 2012). Henry did not petition the Georgia Supreme Court
for a writ of certiorari.
Henry filed a state habeas corpus petition in the Ware County, Georgia, Superior Court
on May 28, 2013. (Doc. 7-1.) Henry asserted that he was denied effective assistance of counsel
during his appeal. (Id. at p. 4.) Following an evidentiary hearing on September 19, 2013, the
state habeas court denied relief on June 10, 2014. (Doc. 7-2.) The Georgia Supreme Court
denied Henry’s application for a certificate of probable cause to appeal the state habeas court’s
denial of relief on October 6, 2014. (Doc. 7-3.)
DISCUSSION
Henry filed this federal petition for writ of habeas corpus on May 1, 2015. (Doc. 1.)
Henry challenges his Emanuel County convictions on three grounds. First, Henry alleges that
the Ware County, Georgia, Superior Court failed to review each of the ineffective assistance of
counsel claims against Henry’s appellate counsel. (Id. at p. 5.) Second, Henry alleges that his
counsel was ineffective, and therefore his conviction was improper, because trial and appellate
counsel failed to argue that the victim’s failure to testify at trial violated Henry’s Confrontation
Clause rights. (Id.) Finally, Henry alleges that his conviction was improper because appellate
counsel failed to argue that the search and seizure of Henry’s laptop computer was illegal. (Id.)
Respondent avers Henry’s petition was untimely filed and should therefore be dismissed.
(Doc. 6.) Henry responds that the statute of limitations period applicable to his Section 2254
claim was tolled because the Georgia Court of Appeals lacked subject matter jurisdiction over
his appeal. (Doc. 9, pp. 1–2.) The Court now addresses Respondent’s assertion.

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I.

Whether Henry’s Petition was Filed Timely
To determine whether Henry’s petition was filed in a timely manner, the Court must look

to the applicable statute of limitations periods. A prisoner must file a petition for writ of habeas
corpus in federal court within one (1) year. 28 U.S.C. § 2244(d)(1). This 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.
Henry’s 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). Henry was convicted in the Emanuel
County Superior Court on January 12, 2010. (Doc. 1, p. 3.) The Georgia Court of Appeals
affirmed his convictions and sentence on June 7, 2012. (Doc. 7-4.) Under Georgia Court of
Appeals Rule 38, Henry had ten days from that decision in which to either move for
reconsideration or file a notice of intent to apply for certiorari to the Georgia Supreme Court.
Henry did neither. Therefore, his conviction became final ten days later, on June 18, 2012, as

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June 17, 2012, fell on a Sunday. 1 Because Henry’s conviction became final on June 18, 2012, he
had one year from that date in which 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) (emphasis supplied); 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).
As noted above, Henry’s conviction became final on June 18, 2012. (Doc. 6-1, p. 4.) He
had one year from that date to file a 28 U.S.C. § 2254 petition for writ of habeas corpus or a
properly filed application for state post-conviction or other collateral review. Henry filed his
state habeas corpus petition on May 28, 2013—344 days after his conviction became final.
(Doc. 7-1.) By that time, twenty-one days of the one-year filing period remained. The Ware
1

In computing time expressed in days, the last day of that time period is included. If the last day is a
Saturday, Sunday, or legal holiday, the time period “continues to run until the end of the next day that is
not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C).

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County, Georgia, Superior Court denied habeas relief on June 10, 2014. (Doc. 7-2.) Henry
timely filed an application for certificate of probable cause to appeal, which the Georgia
Supreme Court denied on October 6, 2014. (Doc. 7-3.) Petitioner then waited 198 days to
submit his federal habeas petition on April 22, 2015. (Doc. 1.) Because this 198 day period
surpassed the twenty-one day window remaining in which Henry could file a timely writ for
habeas corpus, Henry’s 28 U.S.C. § 2254 petition was not timely filed.
Having determined that statutory tolling is not available to Henry, the Court must now
decide whether he is entitled to equitable tolling of the statute of limitations. 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
§ 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), overruled on other grounds by Holland v. Florida, 560 U.S. 631
(June 14, 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)).
Henry arguably avers that he is entitled to equitable tolling of the statute of limitations.
Henry contends that the Georgia Court of Appeals lacked subject matter jurisdiction over his
appeal and, therefore, the Court should toll the statute of limitations as of the date the Georgia
Court of Appeals entered judgment. 2 (Doc. 1, p. 14.) Henry’s contention is without merit. The

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Henry erroneously cites Neal v. State, 722 S.E.2d 765 (Ga. 2012), for the proposition that the Georgia
Supreme Court had exclusive jurisdiction over his appeal, because he was sentenced to life imprisonment.

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Georgia Court of Appeals properly exercised jurisdiction over Henry’s appeal. When Henry
failed to appeal that ruling, his conviction became final on June 18, 2012, and the statute of
limitations began to run. Accordingly, Henry is not entitled to equitable tolling. Consequently,
Henry’s Section 2254 Petition was filed untimely and is subject to dismissal.
II.

Leave to Appeal In Forma Pauperis and Certificate of Appealability
The Court should also deny Henry leave to appeal in forma pauperis, and he should be

denied a Certificate of Appealability (“COA”). Though Henry 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 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, either before or
after the notice of appeal is filed, 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. Cty. 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.

To the contrary, Neal overruled State v. Thornton, 322 S.E.2d 711 (Ga. 1984), which held that the
Georgia Court of Appeals must transfer to the Georgia Supreme Court all cases in which a sentence of
death or life imprisonment has been imposed. Accordingly, the Georgia Supreme Court had general
appellate jurisdiction over Henry’s appeal—not exclusive jurisdiction. Furthermore, the cases cited by
Henry apply only to murder convictions, and Henry was not convicted of murder.

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Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
Stated another way, 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).
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,
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.
Based on the above analysis of Respondent’s Motion to Dismiss and applying the
Certificate of Appealability standards set forth above, there are no discernable issues worthy of a
certificate of appeal; therefore, the Court should DENY the issuance of a Certificate of
Appealability. Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal

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would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be
DENIED.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 6), DISMISS Henry’s Petition for Writ of Habeas Corpus, filed pursuant to 28
U.S.C. § 2254, (doc. 1), and CLOSE this case. I further RECOMMEND that the Court DENY
a Certificate of Appealability and DENY Henry leave to proceed in forma pauperis.
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
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. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
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

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Henry and the Government.
SO ORDERED and REPORTED and RECOMMENDED, this 20th day of January,
2016.

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

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