Opinion
5:22-CV-00198-MTT-MSH
10-06-2022
STEPHEN MARK MCDANIEL, Petitioner, v. WARDEN ANNETTIA TOBY, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Petitioner Stephen Mark McDaniel, an inmate currently confined at Hancock State Prison in Sparta, Georgia, has filed a pro se application and amended application for habeas corpus seeking relief under 28 U.S.C. § 2254 (ECF Nos. 1, 7). Pending before the Court is Respondent's motion to dismiss McDaniel's habeas application as untimely (ECF No. 9). For the reasons stated below, the Court recommends that Respondent's motion be granted, and McDaniel's habeas petition be dismissed as untimely.
BACKGROUND
On November 15, 2011, a grand jury returned an indictment in the Superior Court of Bibb County, Georgia, charging McDaniel with a single count of malice murder. Resp't's Ex. 1, ECF No. 10-1. On April 21, 2014, he pleaded guilty to the charge and was sentenced to life imprisonment. Resp't's Ex. 2, at 1, ECF No. 10-2. McDaniel did not appeal the conviction or sentence. Pet. 2, ECF No. 1. McDaniel filed a state habeas petition in the Superior Court of Richmond County, Georgia, on February 20, 2018. Resp't's Ex. 3, at 1, ECF No. 10-3. The state court denied the petition on September 9, 2019. Resp't's Ex. 4, at 1, 27, ECF No. 10-4. McDaniel filed a petition for a certificate of probable cause with the Georgia Supreme Court, which was denied on November 2, 2020. Resp't's Ex. 5, at 1, ECF No. 10-5. The Georgia Supreme Court denied McDaniel's motion for reconsideration on December 7, 2020. Resp't's Ex. 6, ECF No. 10-6. The Georgia Supreme Court issued its remittitur on January 7, 2021. Resp't's Ex. 9, ECF No. 18-1. The United States Supreme court denied McDaniel's petition for writ of certiorari on October 4, 2021. Resp't's Ex. 7, ECF No. 10-7. It denied his request for rehearing on January 10, 2022. Resp't's Ex. 8, ECF No. 10-8; McDaniel v. Philbin, -U.S.--, 142 S.Ct. 848 (2022) (Mem).
McDaniel filed his federal habeas application on May 31, 2022.Pet. 15. He amended his petition on July 11, 2022. Am. Pet. 4, ECF No. 7. McDaniel asserts one ground. He alleges his guilty plea is “invalid” due to trial counsels' failure to reveal to him that the District Attorney illegally obtained “Defense Core Opinion Work Product.” Pet. 16-17. The alleged work product in question was legal information request forms filled out by McDaniel while in the Bibb County Jail, requesting certain legal material from the law library. Pet. 16; Am. Pet. Ex. B, ECF No. 7-2. The Bibb County Sheriff intercepted the legal requests and emailed copies to the district attorney, who in turn requested his law clerks research and summarize what each item discussed. Am. Pet. Ex. C, ECF No. 7-3. In January 2013, a new district attorney took office, and the chief assistant discovered the intercepted legal research requests. Pet. 16; Resp't's Ex. 4, at 9. She immediately provided them to McDaniel's attorneys. Resp't's Ex. 4, at 9. According to McDaniel, however, trial counsel did not inform him of the intercepted requests, and he did not learn about it until July 11, 2017. Pet. 16-17. McDaniel contends that “[c]ompetent counsel, researching the law, would have learned the theft of defense trial preparations was a per se Sixth Amendment violation that would have resulted in dismissal with prejudice of the indictment.” Pet. 17. Further, he argues “[c]ompetent counsel would have advised Petitioner of the violation and litigated a challenge that would have sent Petitioner home a free man.” Id. Finally, he asserts his Fifth, Sixth, and Fourteenth Amendment rights “were violated by deprivation of due process, by egregious prosecutorial misconduct, and by ineffective assistance of counsel.”Am. Pet. 1.
Although the Court received the habeas application on June 1, 2022, McDaniel signed it on May 31, 2022. Pet. 15. “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.
During the state habeas hearing, trial counsel testified that while the intercept of the legal requests by the district attorney was “a little bit of a rookie move,” it “didn't trouble [him]” because the defense was going to raise the issues and “lawyers can look up the law.” Am. Pet. Ex. G, ECF No. 7-7. He stated he “didn't see it as revealing anything that required [his] intervention.” Id.
Respondent moved to dismiss McDaniel's petition for untimeliness on August 9, 2022 (ECF No. 9). McDaniel timely responded to the motion (ECF No. 14), and Respondent replied (ECF No. 16). Respondent's motion is ripe for review.
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. See Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia, J., dissenting) (“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 jurisprudence.”). 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. ...
(2) The time during which a properly filed application for State postconviction 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.28 U.S.C. § 2244(d). As it pertains to this case, the limitations period begins to run from the latest of:
(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; ...
(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).
II. McDaniel's Habeas Application
Respondent contends McDaniel's petition is untimely under 28 U.S.C. § 2244(d)(1)(A) and (d)(1)(D). Resp't's Br. in Supp. of Mot. to Dismiss 2, ECF No. 9-1. If § 2244(d)(1)(A) is the appropriate trigger date, McDaniels' petition is clearly untimely. McDaniel pleaded guilty and was sentenced on April 21, 2014. Resp't's Ex. 2, at 1. He did not appeal the conviction or sentence. Pet. 2, ECF No. 1. Under Georgia law, he had thirty days in which to file an appeal. O.C.G.A. § 5-6-38(a). The thirtieth day fell on May 21, 2014; so, by May 22, 2014, McDaniel's conviction was final. 28 U.S.C. § 2244(d)(1)(A). Therefore, he had until May 22, 2015, to file a federal petition challenging the conviction. McDaniel did not file his state application for habeas relief until February 20, 2018. Resp't's Ex. 3, at 1. Under § 2244(d)(1)(A), this application would have no bearing on whether McDaniel timely filed his federal habeas petition because it was filed after the AEDPA limitations period expired. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per curiam) (explaining that “[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”). McDaniel's federal habeas application was filed on May 31, 2022, approximately seven years after the limitations period expired if § 2244(d)(1)(A) is the appropriate trigger date. Pet. 15.
McDaniel, however, relies on § 2244(d)(1)(D) and asserts the appropriate trigger date is July 11, 2017, because that is the date he learned of the factual predicate for his claim, i.e., the interception of his law library requests. Pet'r's Resp. to Mot. to Dismiss 1, 7, ECF No. 14. McDaniel argues that, after he learned of the factual predicate, 224 days passed before he filed his state habeas petition, leaving 141 days of the limitation period. Pet. 14. The AEDPA period remained tolled, McDaniel continues, until January 10, 2022, when the United States Supreme Court denied his petition for rehearing on the denial of his petition for writ of certiorari. Id. McDaniel asserts he then had until May 31, 2022, to file his federal habeas petition, and he filed his petition that day, “just before time ran out.” Pet. 14-15; Pet'r's Resp. to Mot. to Dismiss 7.
Even if the Court were to apply § 2244(d)(1)(D) as the trigger date, however, McDaniel's petition is still untimely.The flaw in his argument is his assumption that his case remained tolled while his petition for certiorari was pending with the United States Supreme Court. It did not. The AEDPA limitations period is not tolled under § 2244(d)(2) during the pendency of a petition for certiorari to the United States Supreme Court seeking review of the denial of state postconviction relief. See Lawrence v. Florida, 549 U.S. 327, 331-32 (2007) (“[A] state postconviction application remains pending until the application has achieved final resolution through the State's postconviction procedures. This Court is not a part of a State's post-conviction procedures.” (internal citations and quotation marks omitted)); see also Cineas v. Strange, No. 2:13cv572-WHA, 2015 WL 3736030, at *6 (M.D. Ala. June 15, 2015) (finding certiorari petition to United States Supreme Court following denial of state post-conviction relief did not toll AEDPA limitation period even if the § 2244(d)(1)(D) trigger date applied). This contrasts with the United States Supreme Court's consideration of a petition for certiorari on direct review of a conviction. Lawrence, 549 U.S. at 333. Instead, the AEDPA limitations period only remains tolled pursuant to § 2244(d)(2) until the State's highest court has finally resolved a state post-conviction relief application. Id. at 332.
The Court does not conclude § 2244(d)(1)(D) actually applies. It simply concludes that even if the provision applies, the petition is still untimely.
If it is any consolation to McDaniel, the Georgia Attorney General's Office apparently overlooked Lawrence also, as its argument for untimeliness focuses on the applicability of § 2244(d)(1)(A) and the lack of due diligence under § 2244(d)(1)(D). Nevertheless, Respondent clearly has not waived an untimeliness defense, but merely failed to properly calculate tolling. See Day v. McDonough, 547 U.S. 198, 202 (2006) (finding “no intelligent waiver on the State's part, only an evident miscalculation of the elapsed time under a statute designed to impose a tight time constraint on federal habeas petitioners”); see also Jones v. Minnesota, No. 14-cv-1650 (SRN/HB), 2015 WL 672077, at *5 (D. Minn. Feb. 17, 2015) (adopting magistrate judge's recommendation of dismissal for untimeliness where the respondent's argument incorrectly calculated the elapsed time under § 2244(d)(1)).
Here, McDaniel's state habeas petition was finally resolved upon the Georgia Supreme Court's issuance of its remittitur on January 7, 2021. Resp't's Ex. 9; see Dolphy v. Warden, 823 F.3d 1342, 1345 (11th Cir. 2016) (per curiam) (“Accordingly, when a state habeas petitioner seeks a certificate of probable cause from the Georgia Supreme Court and the Court denies the request, the petitioner's case becomes complete when the Court issues the remittitur for the denial.” (citing O.C.G.A. § 9-14-52(a)). Therefore, McDaniel had 141 days from January 7, 2021-until May 28, 2021-to file his federal habeas application. McDaniel filed his federal habeas petition on May 31, 2022, which was over a year late. Therefore, even if § 2244(d)(1)(D) applies, the petition is untimely.
III. Equitable Tolling
McDaniel is also 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 (quotation marks omitted). McDaniel devotes several pages to discussing his diligence prior to allegedly discovering the factual predicate for his claim on July 11, 2017.Assuming that is the trigger date for his claim, however, McDaniel offers no explanation as to why he could not timely file his federal habeas petition by May 28, 2021. He had over four months following the Georgia Supreme Court's issuance of its remittitur to do so.
Again, the Court does not conclude McDaniel demonstrates due diligence for the period prior to July 11, 2017, but only that it need not address it.
The Court assumes McDaniel mistakenly believed his petition for a writ of certiorari with the United States Supreme Court tolled the AEDPA deadline. However, “[i]t is well settled that mere ignorance of the law or lack of knowledge of filing deadlines does not justify equitable tolling of the AEDPA's limitation period.” Spagnuolo v. United States, No. 21-cv-61044-BLOOM, 2021 WL 3290640, at *2 (S.D. Fla. Aug. 2, 2021) (citing Johnson v. United States, 544 U.S. 295, 311 (2005) (“[The Court has] never accepted pro se representation alone or procedural ignorance as an excuse for prolonged inattention when a statute's clear policy calls for promptness[.]”))); see Hess v. Sec'y, Dep't of Corr., No. 16-14118-E, 2017 WL 6607169, at *2 (11th Cir. Oct. 18, 2017) (“Moreover, this Court has held that pro se status and ignorance of the law do not warrant equitable tolling.” (citing Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997))); Perez v. Florida, 519 Fed.Appx. 995, 997 (11th Cir. 2013) (per curiam) (“[W]e have not accepted a lack of a legal education and related confusion or ignorance about the law as excuses for a failure to file in a timely fashion.” (citing Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir. 2005))).
The Court notes McDaniel is a law school graduate as was his victim. Resp't's Ex. 4, at 2.
In his discussion of due diligence as it applied to the period prior to July 11, 2017, McDaniel also cites limited access to legal material. Pet'r's Resp. to Mot. to Dismiss 8. However, he makes no such argument for the period after July 11, 2017, except for a cursory reference to “the constraints of the prison system.” Id. at 7. At the same time, he admits to being able to research his case, and the numerous legal citations in his state habeas application demonstrate he had the means and ability to familiarize himself with the law on AEDPA tolling. Id.; Resp't's Ex. 3, at 73-75. Further, the Eleventh Circuit has “held that no access or limited access to a law library does not qualify as an extraordinary circumstance to warrant equitable tolling.” Bass v. Att'y Gen., No. 2010985, 2022 WL 1658637, at *2 (11th Cir. May 25, 2022) (per curiam) (citing Akins v. United States, 204 F.3d 1086, 1089-90 (11th Cir. 2000)). Consequently, McDaniel is not entitled to equitable tolling.
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). McDaniel 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. 9) be granted and McDaniel's application and amended application for habeas relief (ECF Nos. 1, 7) 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. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. 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