Opinion
7:23-CV-61 (WLS)
04-04-2024
ROY MANDELL SMITH, Petitioner, v. Warden JACOB BEASLEY, Respondent.
ORDER AND RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
Respondent's Motion to Dismiss is presently before the undersigned for a Report and Recommendation. (Doc. 15). Respondent contends that Petitioner filed his federal habeas petition after the running of the one-year statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Id.
Also before the Court are several motions filed by Petitioner, including a Motion for Habeas Corpus Evidentiary Hearing, a Motion for Leave to File Direct Appeal to the U.S. Supreme Court, a Motion to Disqualify, and a Motion for Immediate Injunction Relief. (Docs. 19, 22, 23, 29).
RECOMMENDATION
On March 8, 2011, a Lowndes County, Georgia jury found Petitioner guilty of three counts of aggravated assault, one count of burglary, four counts of possession of a firearm during the commission of a crime, and one count of possession of a firearm by a convicted felon. (Doc. 3 at 1). Petitioner received a total sentence of 60 years imprisonment. Id. On February 14, 2014, Petitioner's sentence and conviction were affirmed on direct appeal by the Georgia Court of Appeals. (Doc. 16-2). Petitioner did not seek further direct review. (Doc. 3 at 2).
Before the Georgia Court of Appeals ruled on Petitioner's direct appeal, Petitioner effectively filed a state habeas petition on January 16, 2014. (Doc. 16-3 at 7). On May 26, 2015, Petitioner's first state habeas petition was denied. (Doc. 16-4). Prior to the denial of his first state habeas petition, Petitioner filed a second state habeas petition on February 13, 2015. (Doc. 16-5 at 7). This second petition was dismissed as successive on February 29, 2016. (Doc. 16-7). On November 22, 2016, Petitioner filed a third state habeas petition. (Doc. 16-8 at 6). On October 19, 2017, this third petition was also dismissed as successive. (Doc. 16-9). Finally, on November 19, 2021, Petitioner filed a fourth state habeas petition. (Doc. 16-10 at 12). On March 31, 2022, Respondent filed a motion to dismiss Petitioner's fourth state habeas petition as both untimely and successive. (Doc. 16-11). Respondent indicates that the state court has yet to file an order ruling on this motion to dismiss, but cites a document provided by Petitioner indicating the state judge intends to enter an order granting Respondent's motion. (Docs. 3-1 at 1; 15-1 at 2-3).
The Eleventh Circuit previously held that the prison mailbox rule applies to state habeas petitions. Taylor v. Williams, 528 F.3d 847, 851 (11th Cir. 2008). However, the Georgia Supreme Court has since repudiated the application of the “prison mailbox rule” to the initial filing of a state habeas petition. Roberts v. Cooper, 286 Ga. 657, 659-61 (2010). Several courts have subsequently applied the holding of Roberts for purposes of tolling AEDPA's statute of limitations. See Whitaker v. Comm'r, Ga. Dep't of Corr., 2022 WL 2156663 at *1 (11th Cir. 2022) (citing Roberts and finding a state habeas petition “was not deemed filed under Georgia law until it was received by the clerk”). However, the Court need not address this issue because this Petition is untimely even with the benefit of the prison mailbox rule.
Petitioner effectively filed this federal habeas petition on May 31, 2023, challenging his Lowndes County convictions pursuant to 28 U.S.C. § 2254. (Doc. 3 at 16). On September 26, 2023, Respondent filed a Motion to Dismiss the Petition as Untimely. (Doc. 15).
The first document filed by Petitioner on May 16, 2023, was styled as “Petitioner's Request That the Court Send Him U.S. Federal Habeas Corpus Form(s).” (Doc. 1). While this initial filing outlines some factual allegations in support of Petitioner's claims, it appears to merely request forms from the Clerk, rather than serving as a substantive petition for habeas relief. Thus, Petitioner's second filing is treated as the initial Petition for purposes of this Recommendation. (Doc. 3). The Court notes that neither of these two documents would be timely filed under AEDPA.
I. Motion to Dismiss Petition as Untimely (Doc. 15)
A. AEDPA's Statute of Limitations
AEDPA imposes a one-year statute of limitations on federal habeas petitions, running from “the date on which the [state court] judgment [of conviction] 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). That one-year period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. at (d)(2).
Petitioner's conviction was affirmed by the Georgia Court of Appeals on February 14, 2014. Petitioner then had 20 days to seek review from the Georgia Supreme Court. GA. SUP. CT. R. 38 (2). Petitioner failed to seek review and his conviction became final on March 6, 2014. However, the one-year statute of limitation under § 2244 was immediately tolled because Petitioner had a pending state habeas petition. (Doc. 16-3). Petitioner continued to have at least one pending state habeas petition until February 29, 2016, when Petitioner's second state habeas petition was dismissed. (Docs. 16-5, 16-7). On March 30, 2016, the time expired for Petitioner to seek an appeal from the denial of his second state habeas petition. See O.C.G.A. § 9-14-52 (b) (providing that a habeas petitioner seeking to appeal a denial of relief must file an application for a certificate of probable cause “within 30 days from the entry of the order denying him relief”). Because Petitioner's conviction was final, and because Petitioner had no pending applications for state postconviction relief, the one-year statute of limitations on his federal habeas claim began to run on March 30, 2016.
Petitioner effectively filed his third state habeas petition on November 22, 2016, resuming the tolling of AEDPA's one-year statute of limitations. This third petition was filed 237 days after Petitioner's statute of limitations began to run, leaving Petitioner with 128 days on his AEDPA statute of limitations. Petitioner's third state habeas petition was denied on October 19, 2017. (Doc. 16-9). On November 20, 2017, the time expired for Petitioner to seek an appeal from the denial of his third state habeas petition. O.C.G.A. § 9-14-52 (b). Petitioner then had 128 days, or until March 28, 2018, to timely file a federal habeas petition. Because Petitioner did not file his federal habeas petition until May 31, 2023, his federal habeas petition was outside AEDPA's one-year statute of limitations. It is true that Petitioner challenged his convictions in a fourth state habeas petition, but this petition was not filed until November 19, 2021-over three years after the statute of limitations under § 2244 expired. (Doc. 16-10). Thus, Petitioner's fourth state habeas petition cannot toll AEDPA's statute of limitations “because there is no period remaining to be tolled.” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001) (quoting Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)).
The 30-day deadline elapsed on November 18, 2017, but that day was a Saturday. The final day for Petitioner to seek review of the denial of his third habeas Petition would have been the following Monday, November 20, 2017. See O.C.G.A. § 1-3-1 (d)(3) (“[W]hen a period of time measured in days.is prescribed for the exercise of any privilege or the discharge of any duty .if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.”).
Petitioner asserts that his claims are not barred by § 2244's statute of limitations for two reasons. First, Petitioner alleges on several occasions that the Respondent “literally proves the petitioner['s] case” by providing evidence of Petitioner's prior state habeas petitions. (Doc. 21-1 at 5). Petitioner appears to be claiming that because he filed his state habeas petitions in a timely manner, his federal habeas petition is timely. See Doc. 21 at 5 (objecting to the Respondent's claim that this federal petition is untimely because “the Petitioner timely filed these ground(s) while the case was still pending a decision in the Georgia Court of Appeals”). Petitioner also claims, without citing to authority, that a four year statute of limitations applies to his federal habeas petition. (Doc. 21-1 at 5).
The dates on which Petitioner filed his state habeas petitions does not inform the timeliness of this current federal petition, except to the extent that a pending state habeas case allows for tolling under 28 U.S.C. § 2244 (d)(2). As the discussion above demonstrates, Petitioner filed his federal habeas petition well outside AEDPA's one-year statute of limitations. Furthermore, AEDPA clearly provides that the statute of limitations for a federal habeas petition is one year, not four years. 28 U.S.C. § 2244.
Second, Petitioner claims “[t]his petition can not [ sic ] be dismissed as untimely...where Article I. Section (9) Paragraph (2) of the United States Constitution guarantees the privilege of the writ of habeas corpus shall not be suspended.” Doc. 21-1 at 6; see also Doc. 11 at 4 (citing the Suspension Clause and asserting it “bars the State of Georgia Attorney General the option to file any form of motion to dismiss”). However, “the § 2244(d) limitation period does not render the collateral relief ineffective or inadequate to test the legality of detention, and therefore is not an unconstitutional suspension of the writ of habeas corpus.” Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1217 (11th Cir. 2000). Thus, enforcing AEDPA's statute of limitations by dismissing an untimely petition does not violate the Suspension Clause of the U.S. Constitution.
B. Equitable Tolling
A petitioner is “entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted). Attorney abandonment is considered an “extraordinary circumstance.” Jackson v. Sec., Dep't of Corr., 782 Fed.Appx. 774, 777 (11th Cir. 2019) (citation omitted). However, even where an extraordinary circumstance exists, a petitioner “still has the burden to show reasonable diligence.” Id. (citation omitted). “The burden of proving circumstances that justify the application of the equitable tolling doctrine rests squarely on the petitioner.” San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) (citation omitted).
Construed broadly, Petitioner might be taken to allege two different “extraordinary circumstances.” First, Petitioner asserts that his trial attorney “abandoned the petitioner's case after the wrongful conviction(s) on March 8th, 2011.” (Doc. 21-1 at 2). Second, Petitioner cites the Georgia Attorney General's failure to produce certain relevant documents during the 2014 evidentiary hearing regarding Petitioner's first state habeas petition. Id. at 7.
However, even assuming these factual allegations constitute extraordinary circumstances, Petitioner fails to demonstrate he diligently pursued his rights. Over four years elapsed between the denial of petitioner's third state habeas petition in October of 2017, and the filing of his fourth state habeas petition in November of 2021. (Docs. 16-9, 16-10). In that period, Petitioner did not seek to file a federal habeas petition, demonstrating a lack of reasonable diligence. See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (finding petitioner was not entitled to equitable tolling because he waited until “five [] months after his [state habeas] proceedings became final before deciding to seek relief in federal court”) (emphasis in original). Furthermore, Petitioner fails to explain how the withdrawal of his trial counsel in 2011 or the Georgia Attorney General's failure to produce documents in 2014 impeded Petitioner's ability to seek federal habeas relief following the denial of his third state habeas petition. Accordingly, Petitioner has not shown reasonable diligence in pursuing his rights, making equitable tolling inappropriate.
C. Actual Innocence
Petitioner can also overcome the untimeliness procedural bar if he satisfies the miscarriage of justice exception. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have applied the miscarriage of justice exception to overcome various procedural defaults.”). “To invoke the miscarriage of justice exception to AEDPA's statute of limitations.. .a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). A claim of actual innocence must be supported “with new reliable evidence . . . that was not presented at trial.” Schlup, 513 U.S. at 324. The evidence must establish “sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial.” Id. at 317. “[F]actual inaccuracy is not sufficient unless the inaccuracy demonstrates, at least colorably, that the petitioner is actually innocent, or ineligible for, either an adjudication of guilt or the sentence imposed.” Johnson v. Singletary, 938 F.2d 1166, 1182 (11th Cir. 1991) (en banc).
Petitioner makes no mention of a miscarriage of justice in either his Petition, his Amended Petition, or his Response. (Docs. 3, 11, 21). As Petitioner has not set forth any probative evidence of actual innocence, he cannot avail himself of the miscarriage of justice exception to overcome his untimely filing.
D. Conclusion
Petitioner's federal habeas petition is untimely because he did not file it until more than one year after his conviction became final. Furthermore, neither statutory nor equitable tolling make this Petition timely. Accordingly, the undersigned recommends that Respondent's Motion to Dismiss (Doc. 15) be GRANTED.
Pursuant to 28 U.S.C. § 2253(c)(2), the undersigned finds no substantial showing of the denial of a constitutional right. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The undersigned recommends that the Court deny a certificate of appealability in its final Order. If Petitioner files an objection to this Recommendation, he may include therein any arguments he wishes to make regarding a certificate of appealability.
II. Motion for Immediate Injunction Relief (Doc. 29)
“When an inmate challenges the ‘circumstances of his confinement' but not the validity of his conviction and/or sentence, then the claim is properly raised in a civil rights action under § 1983.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). A claim only falls “within ‘the province of habeas corpus'” when it raises a “challenge to the ‘lawfulness of confinement or [the] particulars affecting its duration.'” Id. (quoting Hill v. McDonough, 547 U.S. 573, 579 (2006)) (alternation in original).
In this Motion, Petitioner alleges that another inmate, Jason Gordon, “started a fight” with Petitioner on January 30, 2024. (Doc. 29 at 2). Petitioner states this altercation “resulted in a two (2) inch by four (4) inch gash opening up in the top of [Petitioner's] head.” Id. Petitioner contends “[i]t took over six (6) hours for medical ...to secure a[n] outside doctor to treat” Petitioner. Id. Petitioner claims Respondent and other prison officials did not take disciplinary actions against Gordon, and Gordon was “assigned...to another building.” Id. at 2-3. On February 2, 2024, Petitioner claims he observed Gordon return to the building where Petitioner was housed at 2:00 AM, but indicates Gordon left the building upon seeing Petitioner. Id. at 3. Petitioner states he reported this incident to prison officials and “filed an emergency grievance...demanding that [prison staff] secure the video of the January 30th, 2024, fight and the February 2nd, 2024 video to bring state criminal charge(s) against...Gordon.” Id. On March 2, 2024, Petitioner alleges Respondent and other prison staff “acted in retaliation...by assigning...Gordon to” a unit in the same building as Petitioner. Id. at 4. Following this, Petitioner claims Gordon entered his unit “to threaten [Petitioner] with bodily harm again stating that [Respondent] does not care if he kills [Petitioner].” Id.
Here, Petitioner's Motion appears to allege that Respondent has failed to adequately ensure Petitioner's safety and failed to ensure Petitioner received prompt medical care. These allegations raise issues regarding the conditions of Petitioner's confinement, not the lawfulness of his confinement. See Hale v. Tallapoosa Cnty, 50 F.3d 1579, 1581 (11th Cir. 1995) (addressing claims of “excessive risk of inmate-on-inmate violence” in a § 1983 suit); Farrow v. West, 320 F.3d 1235, 1242-43 (11th Cir. 2003) (addressing claims of deliberate indifference to medical needs in a § 1983 suit). Such claims “fall outside of that core [of habeas corpus] and may be brought pursuant to § 1983 in the first instance.” Nelson v. Campbell, 541 U.S. 637, 643 (2004); see also Gresham v. Williams, 2018 WL 9814418 at *2 (M.D. Ga. 2018), report and recommendation adopted, 2018 WL 9814502 (M.D. Ga. 2018) (“Because the injunctive relief Petitioner seeks falls outside the ‘core' of habeas corpus, his claims for such relief are not cognizable in a proceeding under 28 U.S.C. § 2254.”). Accordingly, because Petitioner's request for injunctive relief falls outside the scope of this habeas proceeding, the undersigned recommends that Petitioner's Motion for Immediate Injunction Relief (Doc. 29) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the recommendations may be reviewed by the District Judge 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.”
ORDER
I. Motion for Habeas Corpus Evidentiary Hearing (Doc. 19)
Petitioner asserts the Court is obligated to set an evidentiary hearing “to preserve the petitioner['s] habeas corpus evidentiary right guaranteed under Article I. Section 9. Paragraph Two (2) of the United States Constitution.” (Doc. 19 at 2). Additionally, in his Response to Respondent's Motion to Dismiss, Petitioner cites the Sixth Amendment of the U.S. Constitution and asserts that “each respondent must separately face [Petitioner] at a[n] evidentiary hearing.” (Doc. 21 at 5).
Section 2254 (e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- (A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254 (e)(2).
Petitioner is not entitled to an evidentiary hearing in this case. First, Petitioner does not allege that his claims rest on either a new rule of constitutional law or a factual predicate that could not have been previously discovered. Indeed, Petitioner makes clear that the claims in this Petition are not new. (Doc 21 at 4, 6). Second, Petitioner has submitted no evidence which demonstrates his innocence of the underlying offenses. Finally, neither the Suspension Clause nor the Sixth Amendment of the U.S. Constitution guarantee the Petitioner a right to an evidentiary hearing in these circumstances. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”). Accordingly, Petitioner's Motion for an Evidentiary Hearing (Doc. 19) is DENIED.
II. Motion for Leave to File Direct Appeal to U.S. Supreme Court (Doc. 22)
In this Motion, Petitioner largely repeats the factual basis for his claims, and requests a “direct appeal to U.S. Supreme Court Chief Justice John Roberts to instruct the lower district court Judge W. Louis Sands to set a[n] evidentiary hearing immediately.” (Doc. 22 at 7).
Petitioner briefly mentions in this Motion that his “life has been placed in imm[i]nent danger” due to his incarceration and makes allegations of “inmate violence, and prison officer death between January 2022 until November 27th, 2023.” (Doc. 22 at 2). These allegations are conclusory and lack any specific factual basis. Furthermore, these allegations raise conditions of confinement issues. As the Court explained above, such issues are not cognizable in a § 2254 proceeding and are properly raised in a § 1983 suit. Nelson, 541 U.S. at 643.
“In a habeas corpus proceeding.. .before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.” 28 U.S.C. § 2253. Thus, once a final order is issued in this case, Petitioner must appeal to the Eleventh Circuit Court of Appeals before he can seek a writ of certiorari with the U.S. Supreme Court. See U.S. SUP. CT. R. 13 (1) (noting that a writ of certiorari may be sought “to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals”). Accordingly, Petitioner's Motion for Leave to File Direct Appeal to U.S. Supreme Court (Doc. 22) is DENIED.
III. Motion to Disqualify (Doc. 23)
Finally, Petitioner seeks to disqualify both the undersigned and the Honorable W. Loius Sands, the district judge assigned to this case. This Order shall address Petitioner's Motion to Disqualify to the extent Petitioner seeks disqualification of the undersigned.
There are two methods by which a party may seek to have a judge removed from a case. Under 28 U.S.C. § 455, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a). This statute “embodies an objective standard. The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Under 28 U.S.C. § 144, “a judge must recuse himself when a party to a district court proceeding ‘files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.'” Johnson v. Wilbur, 375 Fed.Appx. 960, 964-65 (11th Cir. 2010) (quoting 28 U.S.C. § 144). “To warrant recusal under § 144, the moving party must allege facts that would convince a reasonable person that bias actually exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000).
Here, the undersigned is not obligated to recuse under either § 455 or § 144. Petitioner merely insists upon the merits of his claims and alleges that “both judge(s) have failed to set a habeas corpus evidentiary hearing in a timely manner showing prejudice about [Petitioner's] prison release.” (Doc. 23 at 4). The fact that the undersigned has not ruled in Petitioner's favor is not a valid basis for disputing impartiality or demonstrating bias. See Liteky v. United States, 510 U.S. 540, 555-56 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”). Accordingly, Petitioner's Motion to Disqualify (Doc. 23) is DENIED to the extent it seeks to recuse the undersigned.
SO ORDERED AND RECOMMENDED