Opinion
Case No. CV412-155
01-02-2013
AL MAYNAED POTTER, Petitioner, v. WARDEN CEDRICK TAYLOR, Respondent.
REPORT AND RECOMMENDATION
Assisted by counsel, Al Maynard Potter petitions this Court for 28 U.S.C. § 2254 habeas relief from a 1999 conviction in the Superior Court of Chatham County, Georgia for "felony murder in the shooting death of his girlfriend's brother, Jerry McLemore." The Georgia Supreme Court affirmed. Potter v. State, 272 Ga. 430, 430-31 (2000) (Potter I).
Potter I noted that, following Potter's conviction, "[a]ppellate counsel [had been] appointed after [his] motion for new trial was denied. Because [Potter] raise[d] the issue of ineffective assistance of trial counsel for the first time on appeal, [the Potter I court] remand[ed] the case for an evidentiary hearing on this claim." Id. at 431. "The trial court held an evidentiary hearing on the remanded issue and entered an order denying [Potter's] motion for new trial based on ineffective assistance of counsel." Potter v. State, 273 Ga. 325, 325 (2001) (Potter II). He appealed. Id.
The Potter II court held that counsel was not ineffective. Id. at 326-27. That decision issued on January 8, 2001. Id. at 325. Potter says he filed a state habeas petition 329 days later, on December 3, 2001. Doc. 1 at 3. He also says that the petition was denied over nine years later, on February 8, 2011. Id. He appealed that to the Georgia Supreme Court but does not say when. Id. at 5-6. That court, he represents, denied relief on January 23, 2012. Id. Serving a life sentence, he filed his § 2254 petition here 127 days later, on May 29, 2012. Doc. 1 at 1.
Upon preliminary review under 28 U.S.C. § 2254 Rule 4 and 28 U.S.C. § 2243, the Court concludes that Potter's petition is barred by 28 U.S.C. § 2244(d)(l)'s one-year statute of limitations, so it must be dismissed. As explained in French v. Carter, 828 F. Supp. 2d 1309 (S.D. Ga. 2012), the federal one-year limitation clock ticks so long as the petitioner does not have a direct or collateral appeal in play. Id. at 1314.
Federal district courts can raise 28 U.S.C. § 2244(d)(l)'s statute of limitation sua sponte and dismiss time-barred petitions. Jackson v. Sec'y for Dep't of Corrs., 292 F.3d 1347, 1349 (11th Cir. 2002); 15A CYC. OF FED. PROC. § 86:131 (Time for filing) (2012).
Thus, petitioners like Potter must keep the ball rolling between rulings. Gaps anywhere along the way can be fatal. French, 828 F. Supp. 2d at 1314; Everett v. Barrow, 861 F. Supp. 2d 1373, 1375 (S.D. Ga. 2012); 39 AM.JUR.2D HABEAS CORPUS § 119 (Nov. 2012). Potter dropped the ball for 426 days. Nor is there any suggestion that equitable tolling, otherwise "a rare and extraordinary remedy," Doe v. United States, 2012 WL 1138779 at * 1 (11th Cir. Apr. 6, 2012), should be applied. Only indolence is apparent here, and that can cost. Everett, 861 F. Supp. 2d at 1372-73; Crews v. Toole, 2012 WL 1557338 at * 1 (S.D. Ga. May 2, 2012).
Potter, for that matter, bears the sometimes even fatal malpractice risk of missed filing dates. Coleman v. Thompson, 501 U.S. 722, 752-57 (1991) (condemned prisoner pursuing state habeas relief waived right to federal review, and thus could be executed, after his state habeas counsel negligently missed, by 3 days, deadline for appealing denial of state habeas petition); id. at 754 (applying REST. AGENCY 2D § 242 (1958)) ("master is subject to liability for harm caused by negligent conduct of servant within the scope of his employment"); Everett, 861 F. Supp. 2d at 1376-77 (petition time-barred, and no equitable tolling for a petitioner who failed to inquire about the status of his case, even assuming his attorney abandoned him; distinguishing Maples v. Thomas, 565 U.S. __, 132 S. Ct. 912, 923 (2012)).
This point was not overruled by Martinez v. Ryan, 566 U.S. __, 132 S.Ct. 1309, 1315-16 (2012), which modified Coleman on other grounds.
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Therefore, Potter's § 2254 petition should be DISMISSED WITH PREJUDICE. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
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UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA