Opinion
7: 23-CV-82 (WLS)
05-06-2024
PHIRRONNIUS EDWARDS, Petitioner, v. TYRONE OLIVER, Respondent.
ORDER AND RECOMMENDATION
THOMAS Q. LANGSTAFF UNITED STATES MAGISTRATE JUDGE
Presently pending in this federal habeas petition are a Motion to Intervene and the Respondent's Motion to Dismiss Petition as untimely. (Docs. 7, 9). Although ordered by the Court to do so, Petitioner has not responded to Respondent's Motion to Dismiss. (Doc. 11).
ORDER
Georgia Department of Corrections Commissioner Tyrone Oliver has filed a Motion to Intervene as Respondent herein, in order to defend this habeas corpus case. (Doc. 7). The Petitioner is confined at a facility operated by a private corporation which houses prisoners pursuant to a contract with the Georgia Department of Corrections.
Pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases, “[i]f the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody.” Commissioner Oliver points out that the Warden of the facility where Petitioner is housed is not a state official or employee but rather is employed by a private corporation operating the prison at which the Petitioner is confined. Inasmuch as Commissioner Oliver is the chief administrative officer in charge of state penal institutions in Georgia, and thereby is the state officer who has custody of the Petitioner, the Commissioner's Motion to Intervene (Doc. 7) is hereby GRANTED and the Clerk of Court is hereby DIRECTED to substitute Commissioner Tyrone Oliver as the Respondent herein.
RECOMMENDATION
Procedural History
In his Petition, Petitioner challenges his 2012 Colquitt County convictions for felony murder and possession of a firearm during the commission of a felony. (Doc. 1). Following his convictions in January 2014, Petitioner was sentenced to life plus five (5) years. (Doc. 10-3, p. 6). His convictions were affirmed on direct appeal to the Georgia Supreme Court on May 9, 2016. Edwards v. State, 299 Ga. 20, 785 S.E.2d 869 (2016).
On January 30, 2020, Petitioner filed a state habeas petition in the Superior Court of Wheeler County. (Doc. 10-3, pp. 6-20). Following an evidentiary hearing, the state habeas court denied relief, and Petitioner's application for a certificate of probable cause was denied on June 21, 2023. Id. at pp. 64-73; Doc. 10-5. Petitioner executed this federal Petition on July 20, 2023, and the Respondent contends it is untimely filed.
Analysis
Pursuant to the AEDPA, which became effective on April 24, 1996, and is codified at 28 U.S.C. § 2241 et seq., a one-year statute of limitations applies to federal habeas petitions, running from the latest of several events. Section 2244(d)(1)(A) requires a prisoner to file a habeas petition within one year of “the date on which the [state court] judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review”. The Act further provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review . . . is pending shall not be counted toward any period of limitation under this subsection.” § 2244 (d)(2).
Respondent asserts that Petitioner's federal habeas petition is untimely filed. Petitioner had ninety (90) days after the Georgia Supreme Court affirmed his convictions and sentences on May 9, 2016 to file a certiorari petition in the United States Supreme Court, which he failed to do. Sup. Ct. R. 13. Accordingly, Respondent argues that Petitioner's conviction became final ninety (90) days later on August 8, 2016. Pursuant to 28 U.S.C. § 2244(d), the Petitioner had one year from August 8, 2016 in which to either file this federal petition, or toll the limitations period by filing a state habeas petition. However, Petitioner waited to file this federal petition until July 20, 2023 and waited until January 30, 2020 to file his state habeas petition. (Doc. 1; Doc. 10-3, pp. 6-20).
The Court finds that Petitioner failed to file this federal Petition within the governing one-year statute of limitations set out in 28 U.S.C. § 2244(d), and that the filing of his state habeas petition did not toll the one-year period.
Equitable tolling
“Equitable tolling is appropriate when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. U.S., 177 F.3d 1269, 1271 (11th Cir. 1999). A petitioner is entitled to equitable tolling “if he 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). “A petitioner is not entitled to equitable tolling based on a showing of either extraordinary circumstances or diligence alone; the petitioner must establish both.” Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006).
Petitioner bears the burden of showing that “equitable tolling is warranted and must demonstrate both (1) diligent efforts to timely file [the federal petition] and (2) extraordinary and unavoidable circumstances.” Melendez v. Secretary, Dept. of Corrections, 247 F. A'ppx 188, 189 (11th Cir. 2007). Petitioner has made no showing that he is entitled to equitable tolling.
Actual innocence
Finally, the Petitioner has not set forth any probative evidence of actual innocence. “To invoke the miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013) (internal citations omitted). A claim of actual innocence must be supported “with new reliable evidence . . . that was not presented at trial . . . [that shows] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial.” Schlup v. Delo, 513 U.S. 298, 317 (1995). “[F]actual inaccuracy is not sufficient unless the inaccuracy demonstrates, at least colorably, that the petitioner is actually innocent, or ineligible for, either an adjudication of guilt or the sentence imposed.” Johnson v. Singletary, 938 F.2d 1166, 1182 (11th Cir. 1991).
Thus, this federal habeas petition was untimely filed, and Petitioner has not established that equitable tolling is warranted or that he is actually innocent of the crime for which he stands convicted. Accordingly, it is the recommendation of the undersigned that the Respondent's Motion to Dismiss be GRANTED. (Doc. 9). 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 thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge 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.”
The undersigned finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is recommended that the Court deny a certificate of appealability in its final Order. If the Petitioner files an objection to this Recommendation, he may include therein any arguments he wishes to make regarding a certificate of appealability.
SO ORDERED AND RECOMMENDED,