Opinion
Case No. CV415-288
11-05-2015
ERIC ADARYLL WILLIAMS, Petitioner, v. WARDEN DOUG WILLIAMS, Respondent.
REPORT AND RECOMMENDATION
Eric Adaryll Williams has filed a 28 U.S.C. § 2254 petition. Doc. 1. Upon preliminary review under Rule 4 of the Rules Governing Section 2254 Cases, his petition should be denied as untimely. Petitioner was guilty-plea convicted of armed robbery charges on March 13, 2008 and took no appeal. Nor did he file anything until 2015, when he sought to adjust his consecutive sentences. Doc. 1 at 1-3; see also doc. 1-1 (June 10, 2015 state court order denying his motion to declare his consecutive sentences concurrent).
He also moves for leave to proceed in forma pauperis. Finding him indigent, the Court GRANTS that motion. Doc. 2.
Under 28 U.S.C. § 2244(d)(1), petitioner was required to file his § 2254 petition within one year of the date his conviction became final. Chavez v. Sec'y, Fla. Dep't. of Corr., 742 F.3d 940, 945 (11th Cir. 2014); Smith v. Jones, 2015 WL 521067 at * 4 (N.D. Fla. Feb. 9, 2015). That one-year clock is stopped only by the pendency of a properly filed state (direct or collateral) review proceeding. 28 U.S.C. § 2244(d)(2); Rich v. Sec'y for Dep't of Corr., 512 F. App'x 981, 982-83 (11th Cir. 2013); Nesbitt v. Danforth, 2014 WL 61236 at * 1 (S.D. Ga. Jan.7, 2014) ("28 U.S.C. § 2244(d)(1)'s one-year clock ticks so long as the petitioner does not have a direct appeal or collateral proceeding in play."). "An application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Rich, 512 F. App'x at 983 (quotes and cite omitted); Everett v. Barrow, 861 F.Supp.2d 1373, 1375 (S.D. Ga. 2012). Hence, sitting on any claim and creating time gaps between proceedings can be fatal. Kearse v. Sec'y, Fla. Dep't of Corr., 736 F.3d 1359, 1362 (11th Cir. 2013); Nesbitt, 2014 WL 61236 at * 1.
Williams thus ran out § 2244(d)(1)'s one-year clock, and it could not be restarted even if he filed for state habeas relief in 2015. See supra n. 2; Mashburn v. Thomas, 2015 WL 247730 at * 10 (N.D. Ala. Jan. 20, 2015) (a belated, state-court granted appeal failed to restart the federal limitations clock: it "ran out, and the fact that Mashburn subsequently requested, and was granted, a belated appeal does not operate to retroactively statutorily toll those [clock-running] days.").
Williams' only excuse for missing the one-year deadline by years is his legal ignorance of his appellate rights. Doc. 1 at 8-14. That does not serve to stop or toll the one-year clock. Spears v. Warden, 605 F. Appx. 900, 904 (11th Cir. 2015); Hill v. Philbin, 2015 WL 5604371 at * 3 (S.D. Ga. Sept. 23, 2015). Hence, his petition must be DENIED. Doc. 1.
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). 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).
Under Rule 11(a) of the Rules Governing Section 2254 Cases, "[t]he district court must issue or deny a [COA] when it enters a final order adverse to the applicant." --------
SO REPORTED AND RECOMMENDED, this 5th day of November, 2015.
/s/ _________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA