United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
WALTER E. JOHNSON, Magistrate Judge.
Petitioner pro se, Val Ealey, who is presently confined in the Dooly State Prison in Unadilla, Georgia, has filed this Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254  to challenge his convictions entered in the Superior Court of Clayton County. Before the Court are the Amended Petition; respondent's Answer-Response  and Motion to Dismiss the Claims Challenging the 2009 Guilty Plea Conviction as Untimely ; petitioner's Reply ; and petitioner's Motion for Leave to Supplement Exhibits Filed by the Respondent . Petitioner has not shown that the additional exhibits he seeks to add to the record are necessary to resolve the issues before the Court. Accordingly, petitioner's Motion for Leave to Supplement Exhibits Filed by the Respondent is DENIED. Additionally, for the reasons stated below, the undersigned RECOMMENDS that respondent's Motion to Dismiss be GRANTED and that the Amended Petition be denied.
I. PROCEDURAL HISTORY
A. Case Number 2008-CR-1875-5
On October 27, 2007, petitioner was stopped for speeding in Clayton County. (Resp't Ex. 5 pt. 1 [12-7], at 102-03; Resp't Ex. 6, pt. 2 [12-11], at 18.) The officer noticed an odor of marijuana coming from petitioner's vehicle. (Resp't Ex. 6, pt. 2, at 18.) Based on the odor, the officer searched the vehicle and found more than an ounce of marijuana and more than twenty-eight grams of cocaine. (Id.) Petitioner was charged in Clayton County case number 2008-CR-1875-5 with trafficking in cocaine, possession of marijuana, and speeding. (Resp't Ex. 5 pt. 1, at 102-03.)
Following a bench trial on April 21, 2009, petitioner was found guilty on all counts. (Resp't Ex. 5 pt. 1, at 145; Resp't Ex. 5 pt. 2 [12-8], at 32.) The court imposed a total sentence of ten years of imprisonment. (Resp't Ex. 5 pt. 2, at 33.) Thomas Moran represented petitioner at trial. (Resp't Ex. 5 pt. 1, at 145.)
Represented by new counsel, Jonathon J. Majeske, petitioner filed a direct appeal, arguing that his waiver of his right to a jury trial was involuntary. (Resp't Ex. 5 pt. 3 [12-9], at 4-13.) The Georgia Court of Appeals agreed and reversed petitioner's conviction, but concluded that he could be retried. Ealey v. State , 714 S.E.2d 424, 427-28 (Ga.Ct.App. 2011).
On November 29, 2011, represented by Mr. Majeske and Mark J. Issa, petitioner entered a negotiated guilty plea and again received a total sentence of ten years of imprisonment, concurrent with Clayton County case number 2009-CR-0163-5. (Resp't Ex. 6, pt. 2, at 14-24.) Petitioner did not pursue further direct review.
B. Case Number 2009-CR-0163-05
On October 29, 2007, officers from the Clayton County Narcotics Unit executed a search warrant on petitioner's residence. (Resp't Ex. 5 pt. 2, at 100.) Upon entry, the officers found approximately fifty pounds of marijuana, as well as some cocaine. (Id.; Resp't Ex. 2 [12-4], at 2.) Petitioner was charged in Clayton County case number 2009-CR-0163-5 with possession of controlled substances near a school, possession of cocaine, and trafficking in marijuana. (Resp't Ex. 5 pt. 3, at 1-2.)
On May 13, 2009, petitioner, represented by Mr. Moran, pleaded guilty to the trafficking in marijuana charge, and the remaining charges were nolle prossed. (Resp't Ex. 5 pt. 2, at 51, 99-105.) The court sentenced petitioner to seventeen years of imprisonment, concurrent with Clayton County case number 2008-CR-1875-5. (Id. at 108.) Petitioner did not file a direct appeal.
C. Post-Conviction Proceedings
On February 28, 2012, petitioner, still represented by Mr. Majeske, filed a habeas corpus petition in the Superior Court of Dooly County, challenging case number 2009-CR-0163-5. (Resp't Ex. 1a [12-1].) Petitioner later filed a pro se amendment. (Resp't Ex. 1b [12-2].) In that petition, as amended, petitioner raised the following seven grounds for relief: (1) Mr. Moran was ineffective for not properly moving to suppress the contraband found in petitioner's home on the ground that the affidavit supporting the search warrant was legally insufficient; (2) Mr. Moran was ineffective for not moving to quash the indictment on double jeopardy grounds; (3) Mr. Moran was ineffective for failing to challenge the insufficient chain of custody reports as to the marijuana evidence; (4) Mr. Moran was ineffective for not challenging the marijuana tests evaluations because they were fabricated; (5) the prosecutor and trial judge exceeded their jurisdiction in bringing a case against petitioner and entering judgment without evidence or subject matter jurisdiction; (6) the trial court erred in not allowing petitioner to discharge his retained attorney before trial; and (7) the trial court abused its discretion in failing to rule on petitioner's motion to withdraw his plea. (Resp't Ex. 1a, at 5; Resp't Ex. 1b.)
On July 30, 2012, petitioner executed another pro se amendment adding a challenge to case number 2008-CR-1875-5. (Resp't Ex. 1c [12-3].) In that amendment, petitioner added the following grounds for relief: (8) Mr. Majeske and Mr. Issa were ineffective for failing to raise a chain of custody and lack of evidence challenge to the cocaine that formed the basis of his conviction, as the cocaine was never signed out of evidence for testing by the Georgia Bureau of Investigation ("GBI"); (9) Mr. Majeske and Mr. Issa were also ineffective for not arguing that the chain of custody documents revealed false entries; (10) Mr. Majeske and Mr. Issa were ineffective for failing to raise a claim that the GBI lab report was fabricated, as the quantities seized and tested differed; (11) Mr. Majeske and Mr. Issa were ineffective for (a) not arguing that Mr. Moran was ineffective for not properly moving to suppress the drug evidence and (b) not allowing petitioner to view the evidence against him; (12) Mr. Majeske and Mr. Issa were ineffective for not arguing that Mr. Moran was ineffective for abandoning representation after the trial court denied petitioner's motion to suppress; (13) Mr. Majeske was ineffective for not arguing prosecutorial misconduct based ...