Opinion
5:23-cv-00373-MTT-CHW
07-08-2024
TRACY M. JONES, Petitioner, v. ALLEN DILLS, Warden, Respondent.
Proceedings Under 28 U.S.C. § 2254 Before the U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge
Before the Court is Respondent Allen Dills's motion to dismiss as untimely this Section 2254 federal habeas action commenced by Petitioner Tracy M. Jones. (Doc. 13). For the following reasons, it is RECOMMENDED that Respondent's motion be GRANTED, that this action be DISMISSED with prejudice as untimely, and that Petitioner's motion to stay (Doc. 16) be DENIED as moot.
BACKGROUND
Petitioner challenges her November 20, 2013 conviction in the Bibb County Superior Court for malice murder, three counts of felony murder, aggravated assault, first degree burglary, false imprisonment, and theft by taking, for which Petitioner received a total sentence of life without parole. (Doc. 14-3). Petitioner filed no direct appeal. Instead, on June 13, 2019, Petitioner filed a motion for out-of-time appeal (Doc. 14-4), which the trial court denied on July 9, 2019. (Doc. 14-5). Petitioner appealed the denial of her motion for out-of-time appeal, and the Supreme Court of Georgia found that Petitioner had adequately alleged that her failure to file an appeal was due to her counsel's deficient performance and remanded the case for an evidentiary hearing. Jones v. State, 308 Ga. 337 (2020). Pursuant to the remand, the trial court granted Petitioner's motion on March 15, 2021, and Petitioner appealed on April 14, 2021. (Doc. 14-6). It does not appear that this appeal was ever transmitted to the Georgia Court of Appeals or to the Georgia Supreme Court. On March 15, 2022, however, the Georgia Supreme Court decided Cook v. State, in which it held that there “is no legal authority for motions for out-of-time appeal in trial courts” and that out-of-time appeals are “not a legally cognizable vehicle.. .to seek relief for alleged constitutional violations.” Cook v. State, 313 Ga. 471, 506 (2022). As such, a convicted defendant's only remedy for relief in Petitioner's situation, if warranted, is habeas corpus. Id. Citing Cook, the trial court in Petitioner's case vacated its order granting Petitioner's out-of-time appeal and dismissed Petitioner's motion on May 25, 2022. (Doc. 14-7).
This order is not in the exhibits that Petitioner provided, but Petitioner's April 14, 2021 notice of appeal and a subsequent trial court order reflect that the motion was granted. See (Docs. 14-6, 14-7).
Seehttps://www.gaappeals.us/docket-search/ (last visited July 7, 2024) (Docket Search using Trial Court Case No. 13CR69382).
Seehttps://www.gasupreme.us/docket-search/ (last visited July 7, 2024) (Docket Search using Trial Court Case No. 13CR69382 reveals only Petitioner's 2020 case, Case No. S20A0372).
Before the trial court dismissed her out-of-time appeal, Petitioner filed a state habeas action on May 18, 2022, in the Superior Court of Habersham County. (Doc. 14-8). Respondent, who is also the respondent in the state habeas case, filed a motion to dismiss the petition as untimely (Doc. 14-9), which the state habeas court denied after finding that Petitioner's conviction did not become final until the trial court's May 18, 2022 Order dismissing her motion for out-of-time appeal. (Doc. 14-10). Following an evidentiary hearing, the state habeas court denied the petition on May 30, 2023. (Doc. 14-11). After sorting through various procedural and clerical issues (Docs. 14-12 to 14-19), the state habeas court set aside and re-entered the order denying the petition on December 13, 2023. (Doc. 14-20). Petitioner filed for a certificate of probable cause to appeal the denial of her state habeas petition, which remains pending before the Georgia Supreme Court.
Seehttps://www.gasupreme.us/docket-search/ (last visited July 7, 2024) (Case No. S24H0505).
Following the denial of her state habeas petition, Petitioner commenced this federal action on June 2, 2023 (Doc. 1), and later amended the petition. (Doc. 11). Respondent moved to dismiss the petition as untimely and for lack of exhaustion. (Doc. 13). Petitioner then asked this Court to stay her federal habeas petition pending the outcome of appellate review of her state habeas petition. (Doc. 16). For the reasons explained below, Petitioner's action is untimely and not subject to equitable tolling, and her motion to stay is therefore moot.
Untimeliness Under the AEDPA
Under the Antiterrorism and Effective Death Penalty Act or “AEDPA,” a one-year limitation period applies to Section 2254 federal habeas petitions. Normally, as here, that limitation period begins to run as of 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 this date, the Court must “look to the actions taken by the state court and the relevant state law” when determining whether the state direct appellate review process has been completed. Chamblee v. Florida, 905 F.3d 1192, 1196 (11th Cir. 2018). AEDPA further provides for statutory tolling of the limitation period while a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment ... is pending.” 28 U.S.C. § 2244(d)(2).
Because Petitioner did not directly appeal her November 20, 2013 conviction, that conviction became final thirty days later on December 20, 2013. OCGA § 5-6-38(a). From that date, AEDPA's clock ran for 365 consecutive days through December 20, 2014, when it expired.Petitioner's Section 2254 federal habeas petition, not filed until June 2023, is therefore more than eight years out of time.
Because December 20, 2014 was a Saturday, Petitioner would have had until Monday, December 22, 2014 to file her petition.
Petitioner's out-of-time appeal, filed on June 13, 2019, and the subsequent procedural history described above, did not toll the limitations period because the AEDPA clock never restarted. Petitioner cites to Jimenez v. Quarterman, 555 U.S. 113 (2009), and argues that the date her out-of-time appeal became final is the controlling date for direct review. (Doc. 17, p. 3-4). The flaw in Petitioner's argument is that she never had an appeal of her conviction, and thus the state direct appellate review process never started. The review that Petitioner had before the Georgia Supreme Court was not a review of her conviction, but rather a challenge of the trial court's denial of Petitioner's motion for an out-of-time appeal. Jones, 308 Ga. 337. The resulting decision to vacate and remand her case to the trial court did not overturn her conviction or sentence. Id.
The trial court's 2021 order granting Petitioner's out-of-time appeal did not restart the AEDPA clock. The order granted the motion was vacated because, following Cook, the trial court had no authority to grant the motion. Jimenez, a narrow decision, holds only that “where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet final for purposes of [the AEDPA].” Jimenez, 555 U.S. at 121. Because Petitioner has never been granted the right to pursue an out-of-time appeal, Jimenez has no application to Petitioner's case.
A similar case has been decided in the Middle District, Meheux v.Oliver, 7:23-cv-28-HL-TQL (M.D. Ga, Mar. 5, 2024), in which the petitioner filed a federal habeas action instead of a state habeas case after his out-of-time appeal was dismissed pursuant to Cook. The recommendation to dismiss the case as untimely noted that even if Jimenez were extended to petitioner's case, the ultimately void order granting petitioner's out-of-time appeal had no effect on the AEDPA time limit. (Meheux, Doc. 12, p. 5) (recommendation adopted without objection).
Petitioner also noted that she filed a motion to withdraw her guilty plea in April 2021. (Doc. 17, p. 4). There is nothing in the record to reflect this filing. Even assuming that this motion was filed, it would not have revived and tolled the limitations period because the motion to withdraw guilty plea would not have been properly filed within the same term of court as her conviction. See OCGA §15-6-3(28) (“Terms of Court”). See also, Downs v. State, 270 Ga. 310, 311 (1998) (“after the expiration of the term [of court], the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings”). Likewise, Petitioner's state habeas petition did have any tolling effect because that petition was not filed until May 18, 2022, long after AEDPA's clock had already expired.
Equitable Tolling
The AEDPA limitations period can be subject to equitable tolling. “A petitioner is entitled to equitable tolling only if [she] shows (1) that [she] has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in [her] way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). To the extent that Petitioner's response and motion to stay can be read to argue that her federal petition is subject to equitable tolling, the argument fails. Petitioner filed a motion for documents at government expense in 2016 (Doc. 17-5) and did not file her motion for out-of- time appeal until 2019. Both events are outside the AEDPA limitations period and do not excuse a failure to pursue federal habeas relief before June 2023. Even if Petitioner's attempt to seek an out-of-time appeal had constituted a diligent pursuit of her rights for purposes of equitable tolling, Cook's subsequent removal of that remedy, which was a change in law, is not recognized as an extraordinary circumstance that would have affected her ability to timely pursue federal habeas relief. See Outler v. United States, 485 F.3d 1273, 1282 (11th Cir. 2007). Petitioner has not shown, and the record does not establish, the extraordinary circumstances necessary to entitled Petitioner to equitable tolling.
Exhaustion
The AEDPA provides that an “application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This provision, as interpreted, requires § 2254 petitioners to exhaust their claims by fairly presenting them to the State courts through one complete round of review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (“Boerckel applies to the state collateral review process as well as the direct appeal process.”). Even if her federal petition were timely, Petitioner has not satisfied the exhaustion requirement because the Georgia Supreme Court has yet to rule upon her certificate of probable cause and any subsequent appeal from the denial of her state habeas petition. Because a state court has not yet performed one complete round of review Petitioner has not exhausted any claims as contemplated by 28 U.S.C. § 2254. A federal habeas petition dismissed for lack of exhaustion typically would be dismissed without prejudice. As discussed above, however, Petitioner's federal habeas application is also untimely, which creates a permanent bar to relief.
Because Petitioner's Section 2254 petition challenging her November 2013 state conviction is over eight years out of time and the AEDPA clock did not reset by the granting and subsequent dismissal of her out-of-time appeal, the Section 2254 petition is statutorily barred. The record gives no indication that “extraordinary circumstances” warranting equitable tolling are present, and even if it did Plaintiff has not yet exhausted the state habeas process as required. Accordingly, it is recommended that Respondent's motion to dismiss be granted. Based on the above reasoning, there is no reason to stay this action, and Petitioner's request to do so is moot.
CONCLUSION
For the reasons discussed herein, it is RECOMMENDED that Respondent's motion to dismiss (Doc. 13) be GRANTED, that this action be DISMISSED with prejudice as untimely, and that Petitioner's motion to stay (Doc. 16) be DENIED as moot. Additionally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases, it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is further RECOMMENDED that the Court deny a certificate of appealability in its final order.
OBJECTIONS
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. Objections are limited to twenty pages in length. M.D. GA. LOCAL RULE 7.4 The District Judge will 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 further 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.