United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation ("R&R") . The R&R considers Petitioner Quinton Handspike's ("Petitioner") Petition for Writ of Habeas Corpus ("Petition")  and Respondent Dennis Brown's ("Respondent") Motion to Dismiss . The Magistrate Judge recommended that Respondent's Motion to Dismiss be granted and the Petition be dismissed as untimely. The Magistrate Judge recommended that a Certificate of Appealability ("COA") not be issued.
In 2004, Petitioner was found guilty by a jury on two counts of armed robbery, and sentenced to life imprisonment. (Pet. at 1). On May 19, 2006, the Georgia Court of Appeals denied Petitioner's appeal and affirmed his conviction. Handspike v. State , 279 Ga.App. 496, 631 S.E.2d 730, 731 (2006). Petitioner did not seek certiorari in the Georgia Supreme Court. (Pet. at 2).
On July 10, 2007, Petitioner filed a habeas corpus petition in the Superior Court, which was denied on May 10, 2011. (Doc. 10-1 at 1; Doc 10-4 at 1). On June 3, 2011, Petitioner filed an application for a certificate of probable cause in the Georgia Supreme Court, which was denied on September 9, 2013. (Doc. 10-5; 10-6).
On October 28, 2013, Petitioner filed his Petition pursuant to 28 U.S.C. § 2254. On January 22, 2014, Respondent filed an Answer , asserting several defenses, including that the Petition was untimely. On the same day, Respondent moved to dismiss  the Petition as untimely, arguing that it was not filed within the one (1) year limitations period set forth in 28 U.S.C. § 2244(d). Respondent certified that both the Answer and the Motion to Dismiss were mailed to Petitioner. On February 5, 2014, Respondent filed exhibits to his Motion to Dismiss, and certified that the notice of filing of the exhibits was mailed to Petitioner.
Petitioner did not respond to the Motion to Dismiss. On April 25, 2014, the Magistrate Judge issued his R&R, recommending that the Petition be denied as untimely, because the one-year limitations period for Petitioner to file a § 2254 petition expired on May 30, 2007. (R&R at 3-4). Petitioner's time for filing did not toll because he did not seek state collateral review until July 10, 2007, after his one-year limitations period had expired. (R&R at 3). The Magistrate Judge also found that Petitioner's failure to respond to the Motion to Dismiss precluded him from arguing that he was entitled to equitable tolling. (R&R at 4). Having found that the untimeliness of the Petition was not debatable, the Magistrate Judge recommended that a COA not be issued. (R&R at 4-5).
On May 6, 2014, Petitioner objected  to the R&R, asserted that he did not receive Respondent's Answer or Motion to Dismiss, and requested an opportunity to assert that he is entitled to equitable tolling of the limitations period. (Obj. at 1-2).
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the district judge must conduct a plain error review of the record. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983).
1. Untimeliness and Statutory Tolling
The Magistrate Judge, after a careful and thorough review of the record, recommended in his R&R that the Court grant Respondent's Motion to Dismiss, dismiss the Petition as untimely, and deny granting a COA. Because Petitioner did not object to the Magistrate Judge's finding that the Petition was untimely and statutory tolling does ...