Opinion
4:22-CV-00003-CDL-MSH
06-21-2022
DEMETRICE SCOTT, Petitioner, v. WARDEN TAMARSHE SMITH, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Respondent's motion to dismiss (ECF No. 11) Petitioner's habeas petition (ECF No. 1) pursuant to 18 U.S.C. § 2254. For the reasons explained below, it is recommended that Respondent's motion be granted, and Petitioner's habeas petition be dismissed.
BACKGROUND
In February 2016, Petitioner was indicted in the Superior Court of Muscogee County, Georgia for malice murder, two counts of felony murder, rape, three counts of armed robbery, criminal attempt to commit armed robbery, three counts of aggravated assault, three counts of burglary, two counts of theft by taking, and four counts of possession of a firearm during the commission of a felony. Resp't's Ex. 1, at 2, ECF No. 12-1. Petitioner entered a plea agreement in which his murder charges were dismissed in return for his guilty plea on the remaining charges. Id. at 4. Accordingly, Petitioner was sentenced to a total of thirty years in custody with life-long probation. Id. at 4. 1
After his sentencing hearing, Petitioner filed a motion to withdraw his guilty plea. Pet. 1, ECF No. 1. The Superior Court of Muscogee County denied the motion on December 20, 2016. Id. Petitioner filed a direct appeal, resulting in the Georgia Court of Appeals affirming the trial court's decision on October 18, 2017. Pet. 1; Resp't's Ex. 1, at 8. Petitioner sought no further direct review of his conviction. Pet. 3.
On March 17, 2020, Petitioner filed a state habeas petition in the Superior Court of Tattnall County, Georgia, raising several constitutional issues including ineffective counsel, due process violations, and cruel and unusual punishment. Resp't's Ex. 2, at 1, ECF No. 12-2. That court conducted an evidentiary hearing on December 16, 2020, but it has not yet entered a final order. Resp't's Ex. 3, at 1, ECF No. 12-3; Br. in Supp. of Mot. to Dismiss 2, ECF No. 11-1.
On December 14, 2021, Petitioner filed a pro se federal habeas petition under 28 U.S.C. § 2254 raising the same constitutional issues as his state habeas petition. Pet. 511. On March 21, 2022, Petitioner filed a brief (ECF No. 9) in support of his petition. On April 4, 2022, Respondent filed a response (ECF No. 10) and a motion to dismiss (ECF No. 11) Petitioner's federal habeas petition. The Court received Petitioner's response (ECF No. 14) on April 29, 2022. Respondent's motion to dismiss is ripe for review. 2
The Petition was received by the Court on January 7, 2022. However, petitioner signed the petition on December 14, 2021. Under the federal prison mailbox rule, the petitioner's date of signature will serve as the effective filing date. See Daker v. Comm'r, Ga. Dep't of Corr., 820 F.3d 1278, 1286 (11th Cir. 2016) (finding a pro se applicant's objection timely when the date he signed the objection was within the statutory time limitation) (internal citations omitted).
Petitioner realleged the same issues raised in his original federal habeas petition and added no new claims.
DISCUSSION
Respondent moves to dismiss Petitioner's federal habeas petition, contending (1) the petition is untimely, and (2) Petitioner failed to exhaust all state remedies. Br. in Supp. of Mot. to Dismiss 2-9. Accordingly, the Court recommends that Respondent's motion (ECF No. 11) be granted, and Petitioner's habeas petition (ECF No. 7) be dismissed.
I. Petitioner's habeas petition is untimely.
Respondent contends Petitioner's habeas petition is untimely, because (1) the petition was filed outside of 28 U.S.C. § 2244's one-year limitation, and (2) Petitioner does not benefit from statutory tolling. Br. in Supp. of Mot. to Dismiss 2-6. Petitioner responds by claiming ignorance to 28 U.S.C. § 2244's time limitation. Resp. to Mot. to Dismiss 3, ECF No. 14. For the reasons specified below, the Court finds Petitioner's federal habeas petition statutorily barred due to its untimely filing.
A. The Applicable Limitations Period
The Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) was enacted primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions. Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia, J., dissenting) (“The purpose of the AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the . . . overloading of our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisdiction.”). The AEDPA, effective April 24, 1996, therefore instituted a time bar as follows: 3
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. ...
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). The limitation period begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). To determine whether a petition was timely filed, the Court “must determine (1) when the collateral motion was filed and (2) when the judgment of conviction became final.” McCloud v. Hooks, 560 F.3d 1223, 1227 (internal quotation marks omitted).
B. Petitioner's habeas petition was filed beyond 28 U.S.C. § 2244's limitation period.
Here, Petitioner did not file a petition for certiorari with the Georgia Supreme Court after the Georgia Court of Appeals affirmed his conviction on October 18, 2017. Therefore, his judgment of conviction became final on November 7, 2017. See Ga. Sup. Ct. R. 38(2) (requiring petition for certiorari to be filed within twenty days of the Georgia Court of Appeals' entry of judgment); Stubbs v. Hall, 308 Ga. 354, 363 (2020) (applying a federal finality analysis and finding petitioner subject to a final judgment for state habeas purposes twenty days after the Georgia Court of Appeals affirmed his conviction on direct review and petitioner failed to file a petition for certiorari with the Georgia Supreme Court). Petitioner had until November 7, 2018, to file a timely federal habeas petition. However, 4
Petitioner filed his petition beyond the one-year limitation on December 14, 2021, making his petition untimely.
C. Statutory tolling does not make Petitioner's habeas petition timely.
Under 28 U.S.C. § 2244(d)(2), the one-year limitation period is suspended during the time for “[w]hich a properly filed application for State post-conviction or other collateral review with respect to the pertinent. . .claim is pending.” Since Petitioner's state habeas petition is still pending, Petitioner's federal habeas petition could be considered timely if his state habeas petition was filed within 28 U.S.C. § 2244's one-year limitation. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). However, Petitioner's state habeas petition was filed beyond the one-year limitation on March 17, 2020. As a result, statutory tolling does not prevent Petitioner's habeas petition from being untimely.
D. Petitioner is not entitled to equitable tolling.
The one-year limitation on federal habeas petitions may be suspended if the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010). Although Petitioner claims his ignorance to 28 U.S.C. § 2244's time limitation prevented his timely filing, Petitioner fails to make any showing that he diligently pursued his rights. Even if he attempted to meet this burden, Petitioner would be unsuccessful. Petitioner has not diligently pursued his rights, as he failed to seek all opportunities to appeal his judgments and surpassed a timely filing by several years. Furthermore, ignorance to the time limitations of his habeas petition is not an extraordinary circumstance that stood in his way and prevented his timely filing. See Howell v. Crosby, 5 415 F.3d 1250, 1252 (11th Cir. 2005) (finding ignorance to the law a non-extraordinary circumstance warranting no equitable tolling, even for pro se applicants). As a result, Petitioner is not entitled to equitable tolling.
II. Petitioner failed to exhaust all state remedies.
Respondent claims Petitioner failed to exhaust all available state remedies, as Petitioner's state habeas petition remains pending in Tattnall County Superior Court. Br. in Supp. of Mot. to Dismiss 6. The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by the AEDPA, Pub. L. 104-132, § 104, 110 Stat. 1214, “limits the power of a federal court to grant a writ of habeas corpus vacating the conviction of a state prisoner on the ground that the conviction was obtained in violation of the Constitution of the United States.” Hardy v. Comm'r, Ala. Dep't of Corr., 684 F.3d 1066, 1074 (11th Cir. 2012) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); 28 U.S.C. § 2254(b)-(c)). One of those limitations is that a district court “may not grant such applications unless . . . the applicant has exhausted state remedies.” Cullen, 563 U.S. at 181. A state prisoner is required (with few exceptions) to “exhaust[] his state remedies by presenting his constitutional claim to the State courts, to afford them an opportunity to correct any error that may have occurred.” Hardy, 684 F.3d at 1074.
“A failure to exhaust occurs . . . when a petitioner has not ‘fairly presented' every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam)). The exhaustion requirement thus reflects a policy of “comity” between state and federal courts 6 and “reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (internal quotation marks omitted). “If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion.” Gore v. Crews, 720 F.3d 811, 815 (11th Cir. 2013) (per curiam).
“When non-exhaustion is asserted by the respondent, the burden is upon the petitioner to come forward with documentation demonstrating that the instant claims have been exhausted.” Simmons v. Decker, No. 3:04cv436/RS, 2006 WL 3667279, at *5 (N.D. Fla. Dec. 12, 2006) (citing Darr v. Burford, 339 U.S. 200, 218-19, (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)); see also Ellison v. White, No. 5:18-cv-00381-MTT-CHW, 2019 WL 7759272, at *2 (M.D. Ga. Oct. 2, 2019) (citing Darr and concluding Petitioner failed to establish exhaustion of state remedies), recommendation adopted by 2020 WL 448226 (M.D. Ga. Jan. 28, 2020).
Here, Petitioner fails to make any showing that he exhausted all state remedies. Even if Petitioner attempted to make such showing, he would be unsuccessful. In Pope v. Rich, the Eleventh Circuit found a petitioner did not exhaust all state remedies when he failed to request a certificate of probable cause to appeal the denial of his state habeas petition. 358 F.3d 852, 853 (11th Cir. 2004). Like Pope, Petitioner has not yet requested a certificate of probable cause to appeal his state habeas judgment. In fact, Petitioner does not yet have a state habeas judgment to appeal, as his state habeas petition is still pending. 7 Consequently, Petitioner has not and cannot show he exhausted all state remedies. As a result, Petitioner is not entitled to habeas relief under 28 U.S.C. § 2254.
III. A certificate of appealability should be denied.
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Respondent's motion to dismiss (ECF No. 11) be GRANTED and Petitioner's habeas petition (ECF No. 1) be DISMISSED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection is limited 8 in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED. 9