United States District Court, S.D. Georgia, Brunswick Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JAMES E. GRAHAM, Magistrate Judge.
Petitioner Michael Clements ("Clements"), who is currently incarcerated at Wheeler Correctional Facility in Alamo, Georgia, filed a petition for writ of habeas corpus challenging his convictions and sentence obtained in the Long County, Georgia, Superior Court. Respondents filed a Response and a Motion to Dismiss. Clements filed two (2) Responses to the Motion to Dismiss. For the reasons which follow, Respondents' Motion should be DENIED.
STATEMENT OF THE CASE
Clements was convicted in the Long County Superior Court on April 19, 2007, after a jury trial, of kidnapping with bodily injury, aggravated assault, burglary, and aggravated sodomy. Clements was sentenced to life imprisonment. (Doc. No. 1, p. 1). Clements filed a motion for new trial on May 7, 2007, which was denied on April 21, 2010. (Doc. No. 5-3, p. 1). Clements filed a notice of appeal on May 19, 2010. The Georgia Court of Appeals affirmed Clements' convictions and sentence by order dated May 4, 2011. (Doc. No. 5-5).
On April 18, 2012, Clements filed a state habeas corpus petition in the Wheeler County Superior Court. Clements' state habeas corpus petition was denied by order dated June 2, 2014. (Doe. No. 1-1). Clements filed an application for certificate of probable cause, which the Georgia Supreme Court dismissed on September 18, 2014. (Doe. No. 5-4).
In this petition, which was placed in the prison mail system on July 31, 2014, and filed in this Court on August 6, 2014, Clements asserts that he received ineffective assistance of trial and appellate counsel. Clements also asserts that there were excessive delays between the commission of the charged crimes and the trial and the trial and a hearing on his motion for new trial. Respondents contend Clements' petition should be dismissed as untimely filed.
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 ...