McKenzie v. Berry

Filing 24

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court GRANT Respondent's 14 Motion to Dismiss, DISMISS McKenzie's 1 Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY McKenzie in forma pauperis status on appe al and a Certificate of Appealability. 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 1/2/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2016. (csr)

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

CHRISTOPHER MICHAEL MCKENZIE
Petitioner,

CIVIL ACTION NO.: 6:16-cv-48

v.
WARDEN WALTER BERRY,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Christopher McKenzie (“McKenzie”), who is currently incarcerated at Central
State Prison in Macon, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 challenging his conviction and sentence obtained in the Toombs County, Georgia,
Superior Court. (Doc. 1.) Respondent filed an Answer-Response and a Motion to Dismiss.
(Docs. 13, 14.) McKenzie filed a Response to the Motion to Dismiss. (Doc. 17.) For the
reasons which follow, I RECOMMEND the Court GRANT Respondent’s Motion, DISMISS
McKenzie’s Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY McKenzie in
forma pauperis status on appeal and a Certificate of Appealability.
BACKGROUND
McKenzie pleaded guilty to one count of cruelty to children in the Toombs County
Superior Court on November 7, 2011. He was sentenced to a split sentence of 15 years, with
seven years to serve in prison. (Doc. 1, p. 1; Doc. 15-2, p. 2.) McKenzie did not file a direct
appeal. (Doc. 1, p. 2.)

McKenzie filed an application for writ of habeas corpus in the Bibb County Superior
Court on October 22, 2014. (Doc. 15-1.) The Bibb County Superior Court denied McKenzie’s
application by order dated April 16, 2015. (Doc. 15-2.) McKenzie did not file an application for
a certificate of probable cause to appeal the denial of his state habeas corpus petition. McKenzie
executed his Section 2254 Petition on March 28, 2016, and it was filed in this Court on April 18,
2016. (Doc. 1.)
DISCUSSION
In his Petition, which was executed on March 28, 2016, McKenzie states his trial counsel
rendered ineffective assistance because his plea was not entered into knowingly and voluntarily
because the charge to which he pled guilty is not a lesser-included offense of aggravated sexual
battery. (Doc. 1, pp. 5–6.) McKenzie contends the accusation against him is void, in violation
of the Sixth Amendment, because it does not inform him of the nature of the charge or contain
the essential elements of the charged offense. (Id. at p. 6.) McKenzie asserts his competency
was not determined before the acceptance of his plea. Finally, McKenzie maintains his plea to
the accusation is void because there was insufficient evidence to support his plea. (Id.)
Respondent contends McKenzie untimely filed his Section 2254 Petition because he did
not file it within one year of his Toombs County conviction being “final”. Respondent also
argues that McKenzie is not entitled to equitable tolling of the applicable statute of limitations
period. (Doc. 14-1, p. 4.) McKenzie filed a Response to the Motion to Dismiss, yet he did not
address Respondent’s contention that his Section 2254 Petition is untimely. (Doc. 17.) The
Court now addresses Respondent’s contentions.

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I.

Whether McKenzie Timely Filed his Petition
Because Respondent raises the issue of the timeliness of McKenzie’s Petition, this Court

must look to the applicable statute of limitations periods. A petitioner seeking to file a federal
habeas petition has one year within which to file his petition. 28 U.S.C. § 2244(d)(1). The
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.
McKenzie’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). McKenzie was convicted in the Toombs
County Superior Court on November 10, 2011, and he was sentenced on the same date. (Doc. 1,
p. 1.) McKenzie had a period of thirty (30) days to file a notice of appeal. O.C.G.A. § 5-6-38(a)
(“A notice of appeal shall be filed within 30 days after entry of the appealable decision or
judgment complained of[.]”). McKenzie did not file an appeal, and thus, his conviction was final
on December 10, 2011. Because McKenzie’s conviction became final on December 10, 2011, he
had one year from that date in which to file a timely federal habeas petition.
§ 2244(d)(1).

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28 U.S.C.

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); 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, McKenzie’s conviction became final on December 10, 2011. He had
one year from that date, or until December 10, 2012, 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. McKenzie filed his state habeas corpus petition on October 22, 2014, which was nearly
two years after his conviction became final. By that time, the statute of limitations period
applicable to Section 2254 petitions had expired. Consequently, the filing of his state habeas
corpus petition did not toll the federal statute of limitations. On its face, McKenzie’s Petition
was filed untimely. However, it must now be determined whether the applicable statute of
limitations period was equitably tolled.

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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 Section 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 (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)).
McKenzie sets forth no assertion that he is entitled to equitable tolling of the statute of
limitations. To be sure, McKenzie offers no reason why he waited nearly two years after his
state court conviction was final to file a state habeas corpus petition.

In fact, McKenzie

essentially fails to respond to Respondent’s contentions that his Section 2254 Petition was filed
untimely and that he is not entitled to equitable tolling. Accordingly, McKenzie is not entitled to
equitable tolling.
For all of these reasons, the Court should GRANT Respondent’s Motion to Dismiss and
DISMISS McKenzie’s Petition as untimely filed.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny McKenzie leave to appeal in forma pauperis and deny him a

Certificate of Appealability (“COA”). Though McKenzie 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.”

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(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 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. 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

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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 McKenzie’s Petition and Respondent’s Motion 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 would not be taken in good faith. Thus, the Court should likewise DENY McKenzie
in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court GRANT Respondent’s Motion
to Dismiss, (doc. 14), DISMISS McKenzie’s Petition for Writ of Habeas Corpus, filed pursuant
to 28 U.S.C. § 2254, (doc. 1), and DIRECT the Clerk of Court to CLOSE this case. I further
RECOMMEND that the Court DENY McKenzie leave to proceed in forma pauperis and a
Certificate of Appealability.
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

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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
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon McKenzie and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2016.

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

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