Opinion
Civil Action 1:24-CV-0206-SDG-LTW
04-05-2024
DEVONNI BENTON, Petitioner, v. PHIL HALL, Respondent.
PRISONER HABEAS CORPUS 28 U.S.C. § 2254
FINAL REPORT AND RECOMMENDATION
LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE
Petitioner Devonni Benton, presently confined in the Telfair State Prison in Helena, Georgia, has filed this counseled 28 U.S.C. § 2254 petition to challenge his February 20, 2010, convictions in the Superior Court of Fulton County. This matter is currently before the Court on the petition (Doc. 1), respondent's motion to dismiss the petition as untimely (Doc. 5), and petitioner's reply (Doc. 9). For the reasons that follow, it is RECOMMENDED that respondent's motion to dismiss [5] be GRANTED and that this action be DISMISSED as time barred.
I. PROCEDURAL HISTORY
After a Fulton County jury convicted petitioner of felony murder, aggravated assault, and possession of a firearm, the trial court imposed a total sentence of life plus five years of imprisonment. Benton v. State, 794 S.E.2d 97, 99 & n.1 (Ga. 2016). The Georgia Supreme Court affirmed the trial court's judgment on November 21, 2016. Id. at 102.
On March 24, 2017, petitioner filed a pro se habeas corpus petition in the Superior Court of Telfair County. (Doc. 6-2.) After a September 8, 2020, evidentiary hearing, the state habeas court entered a written order denying the petition on January 4, 2022. (Doc. 6-5.) The Georgia Supreme Court denied petitioner's application for a certificate or probable cause to appeal the denial of habeas relief on October 25, 2022 (Doc. 6-7) and issued its remittitur on November 21, 2022 (Doc. 6-8).
Petitioner filed this counseled § 2254 petition on January 16, 2024, arguing that his conviction violates the Double Jeopardy Clause and that his appellate counsel was ineffective for failing to raise the double jeopardy claim. (Doc. 1 at 6, 8; Doc. 1-1 at 7-12.) Petitioner contends that his “petition falls under the miscarriage of justice exception to the one-year statute of limitations” because, had appellate counsel raised a double jeopardy claim, petitioner would have been acquitted and that counsel's failure to do so warrants equitable tolling. (Doc. 1 at 14; Doc. 1-1 at 4-6.) Respondent moves to dismiss the petition as untimely. (Doc. 5-1 at 2-9.) In his reply, petitioner reasserts his equitable tolling argument and contends that the statute of limitations remained tolled after he filed his state habeas petition until the ninety-day period for seeking certiorari review in the United States Supreme Court expired following the Georgia Supreme Court's denial of his application for a certificate or probable cause to appeal. (Doc. 9.)
II. Discussion
A § 2254 petition is subject to a statutory one-year limitation period, which runs from the latest of the following:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created 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 the 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.28 U.S.C. § 2244(d)(1). In this case, there is no claim that the circumstances set forth in subparagraphs (B) through (D) above apply. Thus, pursuant to subparagraph (A), the one-year limitations period began to run on February 21, 2017, when the ninety-day period for seeking certiorari review in the United States Supreme Court expired. See Nix v. Sec'y for Dep't of Corr., 393 F.3d 1235, 123637 (11th Cir. 2004) (per curiam) (holding that a state prisoner's conviction becomes final, for purposes of the one-year limitations period, when the ninety-day period for seeking certiorari review in the United States Supreme Court expires); Sup. Ct. R. 30(1) (providing that when the last day of the time period falls on a weekend or federal legal holiday, the period is extended until the next business day).
The limitations period ran for thirty-one days until March 24, 2017, when petitioner filed his state habeas corpus petition, and remained tolled until November 21, 2022, when the Georgia Supreme Court issued its remittitur after denying petitioner's application for a certificate or probable cause to appeal the denial of habeas relief. See 28 U.S.C. § 2244(d)(2) (providing that statutory tolling applies when “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending”). Contrary to petitioner's assertion, the limitations period did not remain tolled under § 2244(d)(2) until the ninety-day period for seeking certiorari review in the United States Supreme Court expired. Lawrence v. Fla., 549 U.S. 327, 337 (2007). See also Smith v. Tatum, No. 1:21-CV-2206-MHC-CMS, 2021 WL 12192801, at *3 (N.D.Ga. Sept. 1, 2021) (“Petitioner's attempt to obtain certiorari review of her state habeas corpus proceedings provides no additional tolling.” (citing Lawrence, 549 U.S. at 337), R. & R. adopted, No. 1:21-CV-2206-MHC-CMS, 2021 WL 12192824 (N.D.Ga. Sept. 22, 2021). Petitioner then had 334 days, or until Monday, October 23, 2023, to file his § 2254 petition. See Fed.R.Civ.P. 6(a)(1)(C) (providing that when the last day of the time period falls on a weekend or federal legal holiday, the period continues to run until the end of the next business day). Petitioner, however, did not file this petition until January 16, 2024, nearly three months after the limitations period expired.
A plea of actual innocence, if proved, can overcome the one-year limitations period for filing a federal habeas corpus action. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). This “exception is concerned with actual as compared to legal innocence.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citation omitted). “‘To be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial.” Id. (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). To establish his actual innocence, a movant must persuade “the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find [her] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329. “The [actual innocence] gateway should open only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin, 569 U.S. at 401 (citing Schlup, 513 U.S. at 316). Petitioner has failed to meet Schlup's demanding standard as he has not presented any “reliable evidence not presented at trial” to support his actual innocence claim, but merely argues that appellate counsel was ineffective for failing to raise a double jeopardy claim.
The limitations period set forth in “§ 2244(d) is subject to equitable tolling” when a 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) (citation omitted). Petitioner asserts that he is entitled to equitable tolling because appellate counsel did not raise a double jeopardy claim. (Doc. 1-1 at 6.) Petitioner, however, has not alleged that appellate counsel's failure to do so prevented him from timely filing this § 2254 petition. Petitioner, therefore, has not shown that he is entitled to equitable tolling. Accordingly, this § 2254 petition should be dismissed as untimely.
III. Certificate of Appealability
Under Rule 22(b)(1) of the Federal Rules of Appellate Procedure, “the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability [“COA”] under 28 U.S.C. § 2253(c).” Rule 11 of the Rules Governing Section 2254 Cases “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citations and quotation marks omitted). Where, as here, a habeas petition is denied on procedural grounds without reaching the prisoner's underlying constitutional claim, “a certificate of appealability should issue only when the prisoner shows both 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.” Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (internal quotations marks omitted) (citing Slack, 529 U.S. at 484).
A COA is not warranted here because petitioner cannot show that reasonable jurists could debate the dismissal of this habeas action as time barred.
IV. Conclusion
For the foregoing reasons, the undersigned RECOMMENDS that respondent's motion to dismiss [5] be GRANTED, that this action be DISMISSED as time barred, and that a COA be DENIED.
The Clerk is DIRECTED to terminate the referral to the Magistrate Judge.
SO RECOMMENDED.