Opinion
Case No. 4:18-cv-00091-CDL-MSH
05-02-2019
THOMAS RICHIE DOLLAR, JR, Petitioner, v. DONNA TOMPKINS, Respondent.
REPORT AND RECOMMENDATION
Presently pending before the Court is Respondent's motion to dismiss Petitioner's application for habeas relief. (ECF No. 10.) For the reasons described below, it is recommended that Respondent's motion be granted and Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) be dismissed as untimely.
BACKGROUND
According to Petitioner, he pleaded guilty to "Possession of Tools in the Commission of a Crime, Criminal Trespassing, Driving [with] License Suspended, [and] No Proof of Insurance" in February 2014. Pet. 1, ECF No. 1. He was sentenced to five years imprisonment with six months to serve. Id. Petitioner states that he did not seek review of this conviction in any forum. Id. at 2-4.
Petitioner initiated this suit on May 14, 2018 (ECF No. 1). He only claims one ground for relief—that "[i]t's not a crime to ride in your automobile and have your tools inside your automobile; there was no crime being committed; I was only driving." Pet. 5. On September 12, 2018, Respondent moved to dismiss Petitioner's application for habeas relief, arguing it "is barred because it is untimely." Br. in Supp. of Mot. to Dismiss 1, ECF No. 10-1. Petitioner was notified of Respondent's motion on September 13, 2018 (ECF No. 11), but has not responded to it.
On September 25, 2018, the Clerk notified the Court that the copy of the Order notifying Plaintiff of Respondent's motion (ECF No. 11) has been returned as undeliverable. Notice, ECF No. 12. However, Plaintiff has not notified the Court of any change in his address since initiating this suit.
DISCUSSION
I. 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. "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." Hohn v. United States, 524 U.S. 236, 264-65 (1998). The AEDPA, which became effective on April 24, 1996, therefore instituted a time bar as follows:
(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.28 U.S.C. § 2244(d). Under the statute, 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). Thus, in order 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 (11th Cir. 2009) (internal quotation marks and citation omitted) (alterations in original).
. . .
(2) The time during which a properly filed application for State post-conviction 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.
II. Petitioner's Application
According to Petitioner, the conviction he is challenging was issued in February 2014, and he did not appeal it directly or through any collateral review process. Therefore, his conviction became final on the expiration date of the period in which he could have sought direct review. See 28 U.S.C. § 2244(d)(1)(A) (explaining that in the context of determining the AEDPA limitations period, the judgment is final on the date of "the conclusion of direct review or the expiration of the time for seeking such review"). Accordingly, his conviction became final, at the latest, on March 28, 2014.
Petitioner had one year from March 28, 2014, within which to file his federal application for habeas relief unless the limitations period was tolled. 28 U.S.C. § 2244(d). He waited until May 14, 2018, to file his application with this Court—well past the one-year limitation. Petitioner has not shown there is any reason for equitable tolling to apply to his otherwise untimely filing. Therefore, his petition should be dismissed as untimely.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of Rules Governing Section 2254 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). When a court denies a habeas petition on procedural grounds without reaching the merits of the petitioner's application for habeas relief, 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." See Slack v. McDaniel, 529 U.S. 473, 478 (2000). Petitioner cannot meet this standard and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the reasons stated above, it is recommended that Respondent's motion to dismiss (ECF No. 10) be granted and Petitioner's application for habeas relief (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. 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, this 2nd day of May, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE