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Cole v. Warden

United States Court of Appeals, Eleventh Circuit

October 6, 2014

BOB JAY COLE, Petitioner--Appellant,

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 4:13-cv-00014-HLM.

For Bob Jay Cole, Petitioner - Appellant: Noah Carey Graubart, Aamir A. Kazi, Fish & Richardson, PC, Atlanta, GA.

For Georgia SP Warden, Respondent - Appellee: Paula Khristian Smith, Jason Charles Fisher, Samuel Scott Olens, Georgia Department of Law, Atlanta, GA.

Before FAY, Circuit Judge, and HODGES[*] and HUCK,[**] District Judges.


Page 1151

FAY, Circuit Judge:

Bob Jay Cole, a Georgia prisoner, appeals the dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We affirm.


Cole, represented by attorney Pat Clements, pled guilty to malice murder and armed robbery in the Superior Court of Catoosa County, Georgia, on April 1, 1991.[1]

Page 1152

He was sentenced to two, concurrent life sentences. Cole did not file a direct appeal. On June 18, 2008, he filed a pro se Motion to Void Indictment and Conviction as Being Unconstitutional, which was denied in the Superior Court of Catoosa County. Order Denying Mot. to Void Indictment & Conviction (Ga. S.Ct. July 1, 2008).

More than seventeen years after his guilty plea, Cole filed a counseled state habeas petition in the Superior Court of Tattnall County on July 1, 2008.[2] He asserted three bases for his petition relative to his guilty plea. First, he argued he did not knowingly, intelligently, and voluntarily waive his constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).[3] Second, he contended his plea was not knowing, intelligent, and voluntary, because he alleged he was informed by his counsel and the trial judge he would serve only seven years of his life sentences before being released on parole.[4] Third, he asserted his plea counsel was ineffective, because he wanted to use a " battered spouse" defense,[5] which Cole had rejected and was offered no alternative.

The state judge conducted an evidentiary hearing on May 20, 2009, after which Cole was permitted to supplement the record with additional exhibits. Another evidentiary hearing was held on September 22, 2010. A third hearing occurred on January 31, 2012. On March 26, 2012, the state judge granted respondent's motion to dismiss, based on the laches provision of O.C.G.A. § 9-14-48(e).[6] Cole applied for a certificate of probable cause to appeal to the Georgia Supreme Court, which denied his application on November 19, 2012.

Page 1153

Cole v. Upton, Warden, No. S12H1432 (Ga. Nov. 19, 2012).

On January 18, 2013, Cole filed a counseled federal habeas petition in the Northern District of Georgia under 28 U.S.C. § 2254. He pursued the same arguments he had presented in state court.[7] Respondent moved to dismiss his habeas petition as untimely. Cole contended his petition was timely under 28 U.S.C. § 2244(d)(1)(D),[8] because the statute of limitations is unconstitutional on the facts of his case, and he was entitled to equitable tolling.[9] In his Final Report and Recommendation, the magistrate judge noted Cole had until April 24, 1997, to file his habeas petition. Cole, however, did not file his federal habeas petition " until January 18, 2013, more than fifteen years" after the limitations period had expired. Final Report & Recommendation at 4. While the magistrate judge rejected Cole's arguments for habeas relief, he recommended the district judge grant him a certificate of appealability (" COA" ), regarding whether his petition was timely under § 2244(d)(1)(D) or amenable to equitable tolling.

In adopting the magistrate judge's Report and Recommendation, the district judge noted that Cole's objections relied on his contention he did not discover the factual predicate for his Boykin claim until September 2007. The judge concluded Cole's § 2254 petition was untimely under § 2244(d)(1)(D), because Cole knew the facts underlying his claims, when he pled guilty in 1991. " [A]lthough this conclusion appears harsh, the plain language of § 2244(d)(1)(D), which the Court is not free to ignore or change, requires it." Order Denying Habeas Relief at 15.

The district judge noted Cole based his equitable tolling argument on his age, when he pled guilty, and confinement, which he claims prevented him from discovering his Boykin rights earlier. He concluded the statutory limitations period did not commence when Cole discovered the alleged Boykin violation in September 2007. The judge recognized Cole had become an adult after his 1991 plea, and he could have used the prison law library to research his case before the statutory limitations period expired in 1997. He further determined that accepting Cole's unconstitutionality argument " would turn the one-year

Page 1154

limitations period on its head." Id. at 25. Because he " was not reasonably diligent in discovering and pursuing the factual predicate of his claims," the judge also concluded Cole's case did " not present the extraordinary circumstances required to warrant equitable tolling." Id. at 21-22.

The district judge granted respondent's motion to dismiss Cole's § 2254 habeas petition. He also issued a COA for two issues: " (1) whether the § 2254 Petition is timely under 28 U.S.C. § 2244(d)(1)(D); and (2) if the § 2254 Petition is not timely under that provision, whether Petitioner is entitled to equitable tolling." Id. at 27. This appeal followed.


Cole argues he discovered the violation of his Boykin rights relative to § 2244(d)(1)(D) on an unspecified date in September 2007, when he overheard an inmate librarian discussing them. He contends both the judge, who took his guilty plea, and his counsel failed to advise him of his Boykin rights, precluding his knowledge of them and his ability to have waived them by pleading guilty. Alternatively, he seeks equitable tolling, based on his minority at his plea and incarceration thereafter.

A. Statutory Limitation and 28 U.S.C. § 2244(d)(1)(D)

With the " overriding purpose" of achieving finality in federal and state criminal cases, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Murphy v. United States, 634 F.3d 1303, 1309 (11th Cir. 2011). AEDPA establishes a one year statute of limitations for a state prisoner to file a § 2254 habeas petition. 28 U.S.C. § 2244(d)(1). Since Cole's conviction became final before April 24, 1996, the effective date of AEDPA, he had until April 24, 1997, to file his federal habeas petition. Moore v. Campbell, 344 F.3d 1313, 1319-20 (11th Cir. 2003) (per curiam). Cole did not file his § 2254 petition until January 18, 2013.

In keeping with its finality purpose, § 2244(d)(1) restricts a state prisoner's limitations period for filing a § 2254 habeas petition to one year, which begins to run " 'from the latest of' four specified dates." [10]Gonzalez v. Thaler, 132 S.Ct. 641, 652, 181 L.Ed.2d 619 & n.9 (2012) (quoting 28 U.S.C. § 2244(d)(1)). The issue and subsection we address pursuant to the COA is whether Cole's one-year limitations period should have begun in September 2007, when he represents he discovered the alleged Boykin violations that occurred at his plea proceeding, which he argues is " the date on which the factual ...

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