Opinion
Civil Action 1:24-CV-1063-SDG-JKL
06-11-2024
JUSTIN M. MOORE, Inmate No. 1000436446, Petitioner, v. TYRONE OLIVER, Commissioner, Respondent.
PRISONER HABEAS CORPUS 28 U.S.C. §2254
FINAL REPORT AND RECOMMENDATION
JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE
Petitioner Justin M. Moore has filed the instant pro se petition for a writ of habeas corpus under 28 U.S.C. §2254 to challenge the constitutionality of his 2010 convictions and sentences in the Fulton County Superior Court. (Doc.1). The matter is before the Court on the petition [Doc. 1]; the answer-response [Doc. 7]; and Respondent's motion to dismiss the petition as untimely with brief in support and accompanying exhibits [Docs. 8, 9].
I. PROCEDURAL HISTORY
On February 5, 2010, a Fulton County grand jury returned an eight-count indictment against Petitioner and charged him with one count of malice murder, one count of felony murder, two counts of aggravated assault, two counts of theft by receiving stolen property, one count of fleeing and attempting to elude police, and one count of possession of a firearm during the commission of a felony. Moore v. State, 294 Ga. 450, 450 n.1 (2014). On December 6, 2010, the theft by receiving stolen property charges were dead docketed, and after a jury trial Petitioner was found guilty of all charges but malice murder. Id. Petitioner was sentenced on that same day to a net total of life imprisonment plus thirty years. Id. The Georgia Supreme Court affirmed Petitioner's convictions and sentences on January 27, 2014. Id. at 450.
Specifically, Petitioner was sentenced to life imprisonment for felony murder, a consecutive twenty years for aggravated assault, a consecutive one year for fleeing and attempting to elude, and a consecutive five years for possession of a firearm during the commission of a felony. Moore, 296 Ga. at 450 n.1.
On July 6, 2015, Petitioner filed a pro se state habeas petition in the Hancock County Superior Court. (Doc. 9-1). Following an evidentiary hearing on August 23, 2017, the state habeas court denied relief on March 22, 2018. (Doc. 9-2). Although Petitioner filed a notice of appeal in the state habeas court on September 15, 2017 [Doc. 9-3], it does not appear that he filed an application for a certificate of probable cause (“CPC”) with the Georgia Supreme Court.
Petitioner filed another pro se state habeas petition in the Baldwin County Superior Court on November 22, 2022, which the state habeas court dismissed as untimely and successive on March 24, 2023. (Docs. 9-4, 9-5). On January 9, 2024, the Georgia Supreme Court denied Petitioner's application for a CPC and issued its remittitur on January 25, 2024. (Docs. 9-6, 9-7, 9-8).
Petitioner executed the instant pro se habeas petition pursuant to 28 U.S.C. §2254 on February 29, 2024. (Doc. 1). Respondent has filed a motion to dismiss as untimely, to which Petitioner has not responded. (Doc. 8). For the following reasons, I RECOMMEND that Respondent's motion to dismiss be GRANTED and that the petition be DISMISSED as untimely.
Respondent incorrectly states that Petitioner filed the complaint while represented by counsel. (Doc. 8-1 at 2).
II. DISCUSSION
Section 2244(d)(1) of Title 28, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”), contains a one-year limitation period for all prisoners seeking to challenge, via 28 U.S.C. §2254, the validity of a state court conviction. The one-year limitation period runs 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;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id.
After the Georgia Supreme Court affirmed his sentences on January 27, 2014, Petitioner had ninety days to file a petition for certiorari with the United States Supreme Court. See Sup. Ct. R. 13.1. As Petitioner did not seek a petition for certiorari, his convictions were final when the time for seeking a petition expired, or on April 28, 2014. See, e.g., Gonzales v. Thaler, 565 U.S. 134, 150 (2012) (stating that for petitioners who do not pursue direct review to the Supreme Court, the judgment becomes final when the time for pursuing direct review in the Supreme Court or in state court expires); accord Phillips v. Warden, 908 F.3d 667, 672 (11th Cir. 2018). The limitation period thus began to run on April 28, 2014, and, absent any tolling, expired one year later on April 28, 2015. The instant petition, filed almost nine years later on February 29, 2024, is untimely.
Because April 27, 2014, fell on a Sunday, Petitioner had until the next business day, or until Monday, April 28, 2014, to file a petition for certiorari. See Sup. Ct. R. 30(1).
Pursuant to 28 U.S.C. §2244(d)(2), “[t]he 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” does not count toward the one-year limitation period. 28 U.S.C. §2244(d)(2); see also Carey v. Saffold, 536 U.S. 214, 217 (2002). Neither of Petitioner's state habeas petitions tolled the limitation period because they were filed after that period expired; therefore, there was no period remaining to be tolled. See Mitchell v. Sec'y, Fla. Dep't of Corr., No. 22-12689-J, 2022 WL 18635940, at *1 (11th Cir. Dec. 27, 2022) (“If the state post-conviction action is filed following the expiration of the federal limitation period, . . . such state action cannot toll the federal one-year limitation period, because there is no time period remaining to toll.”), cert. denied sub nom. Mitchell v. Dixon, U.S., 143 S.Ct. 2617 (June 12, 2023); accord Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (per curiam). Accordingly, the petition should be dismissed as untimely.
Although the one-year limitation period in §2244(d) is subject to equitable tolling in appropriate cases, Holland v. Florida, 560 U.S. 631,645 (2010), Petitioner bears the burden of establishing that equitable tolling is warranted. Pugh v. Smith, 465 F.3d 1295, 1300-01 (11th Cir. 2006). Since Petitioner has not responded to the motion to dismiss, he has not met that burden and equitable tolling does not apply.
III. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that Respondent's motion to dismiss the petition [Doc. 8] be GRANTED and that the instant petition be DISMISSED WITH PREJUDICE as untimely.
IV. CERTIFICATE OF APPEALABILITY (“COA”)
Pursuant to Rule 11 of the Rules Governing §2255 Cases, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §2253(c)(2).” 28 U.S.C. §2253(c)(2) provides that a COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” In order for the certification requirement to fulfill its function of weeding out frivolous appeals, a court should not automatically issue a COA; rather, the applicant must prove “something more than the absence of frivolity” or “the existence of mere ‘good faith' on his or her part.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citations omitted).
Petitioner need not prove, however, that some jurists would grant the §2254 petition. See id. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” See Lamarca v. Secretary, Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009) (citing Miller-El, 537 U.S. at 325). In other words, Petitioner need only demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Based on the foregoing discussion, reasonable jurists would not find “debatable or wrong” my determination that Petitioner's claims are time-barred. See Slack, 529 U.S. at 484.
IT IS FURTHER RECOMMENDED that a COA be denied.
The Clerk is DIRECTED to terminate the reference to the undersigned Magistrate Judge.
IT IS SO RECOMMENDED AND ORDERED,