United States District Court, S.D. Georgia, Waycross Division
NOAH F. CORBITT, Petitioner,
MARTY C. ALLEN, Warden, Respondent.
ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES E. GRAHAM, Magistrate Judge.
Petitioner Noah Corbitt ("Corbitt"), who is currently incarcerated at Valdosta State Prison in Valdosta, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions obtained in the Atkinson County, Georgia, Superior Court. Respondent filed an Answer-Response and a Motion to Dismiss. Corbitt filed a Response. For the reasons which follow, Respondent's Motion should be GRANTED and Corbitt's petition should be DISMISSED. Corbitt's Motion at Docket Number 9 is DISMISSED as moot.
STATEMENT OF THE CASE
Corbitt was convicted, after a jury trial, in the Atkinson County Superior Court of rape, incest, and child molestation. He was sentenced to 40 years' imprisonment on May 11, 2005. (Doc. No. 1, p. 2). Corbitt filed an appeal, and his convictions and sentences were affirmed on direct appeal by order dated November 9, 2009. Corbitt v. State , 301 Ga.App. 665, 688 S.E.2d 642 (2009). Corbitt filed a petition for writ of certiorari, which the Georgia Supreme Court denied on May 3, 2010. (Doc. No. 1, p. 4).
Corbitt filed a state habeas corpus petition in the Lowndes County Superior Court on November 21, 2011. Corbitt asserted: 1) he did not have the assistance of a public defender during critical stages of his case; 2) five (5) court terms passed without a continuance being requested or granted; 3) he received the trial transcripts more than 17 months after his convictions; 4) there is no paperwork which reveals why his trial did not begin on November 4, 2002; 5) officers tried to get him to confess under false pretenses; 6) his 13 witnesses were not subpoenaed; 7) there was no lab report corroborating the prosecutor's statements regarding seminal fluid; 8) his case was not investigated properly: 9) the prosecutor did not provide notice of all of his witnesses; 10) his attorney signed a stipulation without his knowledge or consent; 11) his counsel was ineffective in a number of ways; and 12) his attorney abandoned his appeal without notifying him. (Doc. No. 6-1, pp. 4-7). An evidentiary hearing was conducted on August 16, 2012, and Corbitt's petition was denied on March 7, 2014. (Doc. No. 6-2). The Georgia Supreme Court denied Corbitt's certificate of probable cause to appeal the denial on June 2, 2014. (Doc. No. 6-3)
Corbitt executed his petition on July 7, 2014, and it was filed in this Court on August 5, 2014. Respondent alleges that Corbitt's petition should be dismissed, as it is untimely.
DISCUSSION AND CITATION TO AUTHORITY
A prisoner must file a petition for writ of habeas corpus in federal court within one (1) year. 28 U.S.C. § 2244(d)(1). This statute of limitations period shall run from the latest of four possible dates:
The limitation period shall run from the latest of-
(A) the date on which the judgment of conviction becomes final by the conclusion of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review: or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...