United States District Court, M.D. Georgia, Macon Division
MARC T. TREADWELL, District Judge.
Before the Court is the Recommendation of Magistrate Judge Stephen Hyles. (Doc. 50). The Magistrate Judge recommends dismissing Petitioner Karreem Jones's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge makes this recommendation because the Petitioner did not file his habeas petition within AEDPA's one-year statute of limitations, nor did he establish entitlement to equitable tolling. In the Recommendation, the Magistrate Judge granted the Respondent's motion to amend his answer to reassert a statute of limitations defense.
I. FACTUAL AND PROCEDURAL BACKGROUND
After his conviction for armed robbery became final on June 30, 2008, Jones petitioned for habeas relief in the Superior Court of Hancock County. Although the petition was delivered to the clerk for filing on June 29, 2009, one day before the AEDPA statute of limitations ran, it was stamped as filed on July 24, 2009. This was because Jones's attorney did not send an error-free HC-2 form and account certification signed by Jones to the Hancock County clerk's office, and thus the state petition was incomplete until the clerk received the correct forms on July 24, 2009. On November 3, 2010, the state court denied habeas relief, and on April 26, 2011, the Georgia Supreme Court denied Jones's application for a certificate of probable cause. Jones filed a petition for writ of habeas corpus in this Court on May 6, 2011.
On August 12, 2011, the Respondent moved to dismiss (Doc. 9), contending the statute of limitations ran on June 30, 2009, twenty-four days before the state petition for habeas corpus was accepted for filing. Jones failed to respond to the motion until the Magistrate Judge ordered his lawyer to file a response. Eventually, Jones argued that the petition was timely filed, but if untimely, he was entitled to equitable tolling. (Doc. 13). Then, the Respondent failed to reply and thus did not address the issue of equitable tolling.
On February 27, 2012, the Magistrate Judge recommended that the Respondent's motion to dismiss be granted. (Doc. 16). Specifically, the Magistrate Judge concluded that (1) Jones's state petition was untimely filed; (2) Jones was not entitled to equitable tolling; and (3) even if the state petition was timely filed on June 29, 2009 (leaving one day on the statute of limitations, his federal petition was not timely filed). Jones then objected to the Recommendation. (Doc. 17).
The Court adopted in part and denied in part the Recommendation. (Doc. 18). Specifically, this Court agreed that Jones's state petition was not filed until July 24, 2009, twenty-four days after the AEDPA statute of limitations had run. With regard to equitable tolling, this Court found that "because of the Respondent's complete failure to address the issue of equitable tolling, " the Court could not "conclude that the Respondent is entitled to dismissal of the petition at this early date." (Doc. 18 at 7). Finally, the Court rejected the Magistrate Judge's conclusion that Jones's federal petition had not been timely filed just because it was filed ten days after the denial of his application for a certificate of probable cause.
After the entry of this Court's Order on March 30, 2012, there was no activity in the case until February 19, 2013 when Jones requested a status conference. (Doc. 20). On March 4, 2013, the Magistrate Judge ordered the Respondent to respond to the petition and file the record. (Text only order March 4, 2013). On April 3, 2013, the Respondent filed his "Amended Answer-Response" to the petition in which he withdrew "his assertion that this petition is untimely, as the Court has resolved that issue and deemed the petition timely." (Doc. 23). How the Respondent could have concluded from this Court's Order that the timeliness issue had been "resolved" remains unexplained.
In October 2013, the Magistrate Judge ordered the Parties to "carefully review" this Court's Order. By December 2013, the Respondent realized that this Court's Order, far from resolving the timeliness issue, expressly remanded the case to the Magistrate Judge for the resolution of that issue. Accordingly, on December 6, the Respondent moved to amend his answer, contending that the withdrawal of his statute of limitations defense "was done in error, as below-signed counsel, who took over this case, misread the District Court's order of March 2012 and thought that the question of timeliness had been fully and conclusively resolved." (Doc. 35 at 1). On December 27, 2013, Jones filed what he styled a "Preliminary Reply to Respondent's Second Amended Answer and Supplement Briefing Regarding His Previously Denied Motion to Dismissed [sic] and His Belated Opposition to Petitioner's Request for Equitable Tolling, " in which he asserted that if the Magistrate Judge were to grant Respondent's motion to amend his answer, "Petitioner will seek leave to file an amended petition to raise a gateway innocence claim under Schlup v. Delo, 513 U.S. 298 (1995) as a separate basis for equitable relief." (Doc. 41).
Without ruling on the motion to amend, the Magistrate Judge convened an evidentiary hearing on the issue of equitable tolling on June 6, 2014. On August 12, 2014, the Magistrate Judge entered his Order and Report and Recommendation in which he granted the Respondent's motion to amend and recommends that the Court dismiss the petition as untimely because the Petitioner had not established grounds for equitable tolling. (Doc. 50).
Jones filed an objection to both the Order and the Recommendation. (Doc. 55).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered Jones's objections and has made a de novo determination of the portions of the Recommendation to which Jones objects. Specifically, Jones contends that the Magistrate Judge erred by allowing the Respondent to assert a timeliness defense after the Respondent had purportedly waived it. Jones further argues that he is entitled to equitable tolling because extraordinary circumstances prevented him from timely filing. Finally, Jones makes a general plea, invoking notions of justice to compel equitable ...