Opinion
4:19-cv-00209-CDL-MSH
02-05-2021
ANTONIO ROBINSON, Petitioner, v. Warden WALTER BERRY, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
Petitioner has filed an application for a writ of habeas corpus seeking relief pursuant to 28 U.S.C. § 2254 (ECF No. 1). Pending before the Court is Respondent's motion to dismiss (ECF No. 24). For the hereinbelow reasons, the Court recommends that Respondent's motion be granted and that Petitioner's habeas application be dismissed.
BACKGROUND
On March 22, 1996, Petitioner was convicted of three counts of armed robbery in the Superior Court of Muscogee County, Georgia. Pet. 1, ECF No. 1; Resp't's Ex. 2, at 1, ECF No. 25-2. He was sentenced to life imprisonment on the same day. Pet. 1. He maintains he appealed his sentence to the Supreme Court of Georgia. Id. at 2. While confined pursuant to his sentence, the Georgia State Board of Pardons and Paroles (“Parole Board”) denied Petitioner parole on September 11, 2009, and on November 12, 2014. Resp't's Ex. 1, at 1-2, ECF No. 25-1. On February 24, 2016, the Parole Board “tentatively grant[ed] [Petitioner] parole upon successful completion of the [Georgia] Department of Corrections Work Release program.” Id. at 3. The Parole Board sent a referral to the Georgia Department of Corrections (“GDC”), requesting that he be placed in the Work Release program. Id. On May 26, 2016, the Parole Board “reconsidered” Petitioner's case and again denied him parole. Id. at 4.
Petitioner also previously filed two habeas applications pursuant to § 2254 before this Court, which both directly challenged his conviction and sentence and were dismissed. See Robinson v. Humphrey, 4:02-cv-00101-CDL, Order (M.D. Ga. July 24, 2002), ECF No. 7 (adopting recommendation to dismiss habeas application as untimely); Robinson v. Chattman, 4:10-cv-00056-CDL, Order (M.D. Ga. June 1, 2010), ECF No. 9 (adopting recommendation to dismiss habeas application as an unauthorized second or successive petition).
The Parole Board also denied Petitioner parole on July 19, 2017, April 25, 2018, and May 9, 2019. Resp't's Ex. 1, at 5-7.
Petitioner filed a state habeas application in the Superior Court of Richmond County, and the Superior Court dismissed his habeas application on December 13, 2018, holding that Petitioner's “challenge to the duration of his confinement is not cognizable in [a] habeas proceeding . . . [because] [t]he proper remedy for an inmate's claim that parole has been wrongfully denied lies in a mandamus action against the Parole Board[.]” Resp't's Ex. 2, at 1-2. On March 12, 2019, Petitioner filed a petition for a writ of mandamus in the Superior Court of Richmond County, challenging his denial of parole. See Resp't's Ex. 3, at 1-8, ECF No. 25-3. On August 15, 2019, the Superior Court dismissed Petitioner's petition for lack of service. Resp't's Ex. 4, at 1, ECF No. 25-4.
The Court received Petitioner's habeas application (ECF No. 1) on December 16, 2019. On January 24, 2020, the Court initially construed Petitioner's habeas application as challenging his underlying conviction and sentence, dismissed it as an unauthorized second or successive habeas application pursuant to § 2244(b)(3), and entered judgment accordingly. Order 1-2, ECF No. 10; Judgment, ECF No. 11. On February 10, 2020, the Court received Petitioner's motion to alter judgment (ECF No. 15) and motion for reconsideration (ECF No. 16), wherein he argued that he seeks to challenge his parole denial rather than his underlying conviction and sentence. Mot. to Alter J. 3, ECF No. 15; Mot. for Recons. 2-3, ECF No. 16. On February 28, 2020, the Court granted Petitioner's motions, vacated its Order of dismissal and judgment, and ordered service of Petitioner's habeas application. Order 2-4, 6-7, ECF No. 17. On October 28, 2020, the Court again ordered service because it was unclear whether service had been performed pursuant to the Court's February 28 Order. Text-only Order, ECF No. 20. On December 28, 2020, Respondent filed his response (ECF No. 23), motion to dismiss (ECF No. 24), and exhibits in support (ECF No. 25). On December 29, 2020, the Court notified Petitioner of Respondent's motion and ordered him to file any response within thirty days. Order 1-2, ECF No. 26. Petitioner failed to respond. Respondent's motion is ripe for review.
DISCUSSION
In his habeas application, Petitioner appears to contend that GDC denied him due process protections by depriving him of the opportunity to participate in the Work Release program pursuant to the Parole Board's February 24, 2016, decision, that he was denied parole as a result, and that he is entitled to habeas relief to allow him to participate in the program. Pet. 6-8, ECF No. 1. Respondent moves to dismiss on three grounds: (1) Petitioner filed his habeas application outside the applicable limitations period, (2) Petitioner failed to exhaust state remedies, and (3) Petitioner fails to state a claim for relief. Br. in Supp. of Mot. to Dismiss 2-9, ECF No. 24-1. The Court recommends that Respondent's motion be granted because Petitioner untimely filed his habeas application and failed to exhaust state remedies. The Court declines to address whether Petitioner fails to state a claim.
I. Untimeliness
Respondent argues the Court should dismiss Petitioner's habeas application as untimely because he filed his habeas application challenging his denial of parole outside the applicable limitations period. Br. in Supp. of Mot. to Dismiss 2-4. The Court agrees.
A. AEDPA 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.
(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.28 U.S.C. § 2244(d). Section 2254 is the appropriate vehicle for a prisoner challenging an administrative decision to deny parole or pre-parole status. See, e.g., Young v. Harper, 520 U.S. 143, 146-47 (1997) (holding that state's pre-parole program “was equivalent to parole” and therefore § 2254 petitioner was entitled to due process protections prior to removal from program). Where a habeas petitioner challenges an administrative decision, such as one issued by a state parole board, the limitation period begins to run on “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)(D); see Brown v. Barrow, 512 F.3d 1304, 1307 n.1 (11th Cir. 2008) (per curiam) (citations omitted). 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).
B. Petitioner's Habeas Application
Petitioner's habeas application is untimely. The Parole Board issued its initial decision allowing Petitioner to participate in the Work Release program on February 24, 2016. Resp't's Ex. 1, at 3. In his habeas application, Petitioner appears to allege that GDC prevented him from participating in the Work Release program-contrary to the Parole Board's instructions. Pet. 6-7. He asserts this resulted in the Parole Board denying him parole on May 26, 2016. Resp't's Ex. 1, at 4. Id. He argues he is entitled to parole as a result. Id.
To the extent Petitioner claims that Respondent denied him due process by failing to enroll him in the Work Release program, “the factual predicate of the claim . . . could have been discovered through the exercise of due diligence[]” when the Parole Board issued its subsequent decision on May 26, 2016, “reconsider[ing]” his referral to the Work Release program and denying him parole. 28 U.S.C. § 2244(d)(1)(D); Resp't's Ex. 1, at 4. By that date, Petitioner knew that the Parole Board had reversed its recommendation that he be tentatively granted parole through the Work Release program, whether based on GDC and Respondent's failure to enroll him in the Work Release program or some other factor. See Brown, 512 F.3d at 1307-08 (calculating the limitations period for an inmate raising a claim concerning denial of parole from the date the inmate was denied parole); see also Hawes v. Howerton, 335 Fed.Appx. 882, 884 (11th Cir. 2009) (per curiam) (same). Under Georgia law, an inmate serving a life sentence may not appeal the Parole Board's decision to deny parole. See Ga. Comp. R. & Regs. § 475-3-.05(5) (providing for appeals of Parole Board decisions for inmates not serving life sentences); O.C.G.A. § 50-13-2(1) (exempting the Parole Board from the Georgia Administrative Procedures Act). Thus, the Parole Board's decision was final upon issuance, and Petitioner had one year from May 26, 2016-until May 27, 2017-within which to timely file his federal habeas application. 28 U.S.C. § 2244(d). Petitioner, however, filed his federal habeas application on December 8, 2019-over two years after the limitations period expired-so his habeas application is untimely unless the limitations period has been tolled.
Although the Court received the habeas application on December 16, 2019, Petitioner signed it on December 8, 2019. Pet. 16. “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.
Under Georgia law, to challenge the denial of parole, an inmate must file a petition for a writ of mandamus against the Parole Board. Brown, 512 F.3d at 1308 (citing Johnson v. Griffin, 271 Ga. 663, 663 (1999)); see also Resp't's Ex. 2, at 1-2. Petitioner, indeed, filed a petition for a writ of mandamus on March 12, 2019, arguing that he had been unlawfully denied parole based on the same allegations he raises here. Resp't's Ex. 3, at 1-8. By the time he filed his petition for a writ of mandamus, however, the limitations period had already expired. “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 petition for a writ of mandamus does not affect the timeliness of his federal habeas application. Therefore, this Court lacks jurisdiction because Petitioner's application for habeas relief is untimely.
C. Equitable tolling
Petitioner is not entitled to equitable tolling of the limitations period. 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 fails to make such a showing. He does not claim any basis for equitable tolling, and the Court cannot conceive of one. Therefore, Petitioner's application for habeas relief should be dismissed as untimely.
II. Exhaustion
In the alternative, Respondent argues that Petitioner's habeas application should be dismissed because he failed to exhaust available state remedies. Br. in Supp. of Mot. to Dismiss 5-7. The Court agrees. “Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a [person in custody] made insufficient effort to pursue in state proceedings.” Williams v. Taylor, 529 U.S. 420, 437 (2000). Accordingly, 28 U.S.C. § 2254(b)(1)(A) prohibits a court from granting an application for a writ of habeas corpus unless “the applicant has exhausted the remedies available in the courts of the State.” “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c) (emphasis added).
“Exhaustion requires that ‘state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'” Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “That is, to properly exhaust a claim, the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010) (per curiam) (internal quotation marks omitted). Further, a petitioner “must comply with all independent and adequate state procedures.” Id. (internal quotation marks omitted). “When non-exhaustion is asserted by the respondent, the burden is upon the petitioner to come forward with documentation demonstrating that the instant claims have been exhausted.” Simmons v. Decker, No. 3:04cv436/RS, 2006 WL 3667279, at *5 (N.D. Fla. Dec. 12, 2006) (citing Darr v. Burford, 339 U.S. 200, 218-19, (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)); see also Ellison v. White, No. 5:18-cv-00381-MTT-CHW, 2019 WL 7759272, at *2 (M.D. Ga. Oct. 2, 2019), recommendation adopted by 2020 WL 448226 (M.D. Ga. Jan. 28, 2020) (citing Darr and concluding Petitioner failed to exhaust state remedies).
Here, as explained above, Georgia law provides that an inmate seeking to challenge denial of parole must file a petition for a writ of mandamus against the Parole Board. Brown, 512 F.3d at 1308 (citing Johnson, 271 Ga. at 663). Although Petitioner filed a petition for a writ of mandamus, the Superior Court dismissed the petition for lack of service and did not reach the merits of Petitioner's claims. Resp't's Ex. 3, at 1-8; Resp't's Ex. 4, at 1. Simply filing the appropriate state action is insufficient to exhaust state remedies. Instead, a petitioner must obtain a ruling on his petition, and, if it is adverse, appeal to “the highest court in the state in which he is being held ‘when such review is part of the ordinary appellate review procedure' in that jurisdiction.” Jackson v. Walker, 206 Fed.Appx. 967, 968 (11th Cir. 2006) (per curiam) (quoting Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004)).
Under Georgia law, a petitioner may appeal the denial of a petition for a writ of mandamus to the Supreme Court of Georgia. Ga. Const. 1983, art. VI, § 6, ¶ III (providing that the Supreme Court of Georgia has exclusive jurisdiction to hear appeals from “[a]ll cases involving extraordinary remedies”); Schrenko v. DeKalb Cty. Sch. Dist., 276 Ga. 786, 794 (2003) (“Mandamus is an extraordinary remedy . . . .”). Because Petitioner failed to either receive a determination as to the merits of his claim in a petition for a writ of mandamus or appeal any adverse decision to the Supreme Court of Georgia, he has failed to exhaust available state remedies. The Court RECOMMENDS that Respondent's motion to dismiss be GRANTED.
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 foregoing reasons stated above, the Court recommends that that Respondent's motion to dismiss (ECF No. 24) be granted and that Petitioner's habeas application (ECF No. 1) be dismissed. 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