Opinion
No. 5:19-cv-117-TES-MSH
11-01-2019
LASHAWN DEANGELO GRIER, Petitioner, v. Warden JAMES DEAL, Respondent.
REPORT AND RECOMMENDATION
Presently pending before the Court is Respondent's motion to dismiss Petitioner's application for habeas relief as untimely (ECF No. 7). For the reasons stated below, the Court recommends that Respondent's motion be granted and Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed as untimely.
BACKGROUND
On August 10, 2011, a Monroe County, Georgia grand jury indicted Petitioner for one count of armed robbery and one count of robbery by intimidation. Resp't's Ex. 5, at 1, ECF No. 9-5; Pet'r's Exs. 1, ECF No. 12. On March 26, 2012, Petitioner pled guilty to the armed robbery, and the robbery by intimidation charge was nolle prossed. Pet. 1, ECF No. 1; Resp't's Ex. 1, at 1-2, ECF No. 9-1. The Superior Court of Monroe County sentenced Petitioner to twenty years, with fifteen years to serve and five years probation. Pet. 1; Resp't's Ex. 1, at 1. Petitioner did not appeal.
On September 10, 2013, Petitioner filed a state application for writ of habeas corpus in the Superior Court of Richmond County, Georgia. Resp't's Ex. 2, at 1-7, ECF No. 9-2. On February 11, 2014, Petitioner filed a brief in support of his state habeas application, and he amended his application on December 19, 2014. Resp't's Ex. 3, at 13, ECF No. 9-3; Resp't's Ex. 4, at 4, ECF No. 9-4. After his application was transferred, the Superior Court of Lowndes County, Georgia denied the application on October 12, 2017. Resp't's Ex. 5, at 1-17, ECF No. 9-5. On April 16, 2018 the Supreme Court of Georgia denied Petitioner's application for a certificate of probable cause to appeal the denial of his state habeas application. Resp't's Ex. 6, at 1, ECF No. 9-6.
On March 27, 2019, Petitioner filed his federal application for a writ of habeas corpus under 28 U.S.C. § 2254. Pet. 15. He raises three grounds in his application: (1) his indictment was invalid because it lacked facts to support its issuance, (2) his indictment was invalid because it lacked a certificate of authenticity indicating it was filed in open court, and (3) his trial counsel was ineffective because counsel failed to investigate the validity of Petitioner's arrest warrant, failed to secure him bond, and coerced him into pleading guilty. Pet. 5-8, 10. On July 17, 2019, Petitioner amended his application by alleging new facts in support. Am. Pet. 1-3, ECF No. 5. Respondent answered (ECF No. 6) and filed this motion to dismiss (ECF No. 7) on August 30, 2019. Petitioner responded (ECF No.11) on September 16, 2019. This motion is ripe for review.
Although the Court did not receive Plaintiff's complaint until April 1, 2019, Plaintiff signed the application and placed it in the prison mailing system on March 27, 2019. "Under the prison mailbox rule, a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing." United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). "Unless there is evidence to the contrary, like prison logs or other records, we assume that a prisoner's motion was delivered to prison authorities on the day he signed it." Id.
DISCUSSION
Respondent moves to dismiss Petitioner's application for habeas relief because it was filed outside the applicable limitations period. Mem. in Supp. of Mot. to Dismiss 2-6, ECF No. 7-1. The Court agrees Petitioner's application for habeas relief is untimely and recommends that Respondent's motion to dismiss be granted.
I. 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) ("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:
(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). 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 (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 for Relief
Petitioner's limitation period has expired, and his petition is untimely. Petitioner pled guilty and was sentenced on March 26, 2012. Pet. 1; Resp't's Ex. 1. He had thirty days to file a notice of appeal. O.C.G.A. § 5-6-38. His conviction thus became final on April 26, 2012, when the time for filing an appeal expired. 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").
Petitioner had one-year from April 26, 2012—until April 27, 2013—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 September 10, 2013, to file his state application for habeas relief. Resp't's Ex. 2, at 1-7. "A state court petition . . . that is filed following the expiration of the limitations period cannot toll [the AEDPA] period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1299 (11th Cir. 2000). As a result, Petitioner's state habeas petition does not affect the timeliness of his federal habeas petition. Petitioner filed his federal application for habeas relief on March 27, 2019—nearly six years after the limitations period expired. Pet. 15. Therefore, this Court lacks jurisdiction because Petitioner's application for habeas relief is untimely. Respondent's motion to dismiss should granted.
III. Equitable tolling
Petitioner is not entitled to equitable tolling. The one-year AEDPA limitations period is subject to equitable tolling only in certain situations. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner must show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 649. Petitioner has not made such a showing. Therefore, Petitioner's application for habeas relief 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. 7) be granted and Petitioner's application for habeas relief (ECF No. 1) be dismissed as untimely. 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 1st day of November, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE