United States District Court, N.D. Georgia, Atlanta Division
Arnold Vernard Porter, Petitioner, Pro se, Stone Mountain, GA.
For Steven Perkins, Respondent: Ryan Kolb, Georgia Department of Law, Office of the Attorney General, Atlanta, GA.
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
ALAN J. BAVERMAN, UNITED STATES MAGISTRATE JUDGE.
PRISONER HABEAS CORPUS 28 U.S.C. § 2254
Petitioner, Arnold Vernard Porter, challenges via 28 U.S.C. § 2254 the constitutionality of his 1997 Fulton County convictions for manslaughter, armed robbery, and aggravated assault. The matter is before the Court on the petition, [Doc. 1]; Respondent's answer-response and motion to dismiss the petition as untimely, [Docs. 4, 5]; Petitioner's reply, as amended, to the answer-response, [Doc. 8, 9, 10, 11];  and Respondent's additional response and motion to dismiss the petition for lack of exhaustion, [Docs. 15, 16].
In 1995, the Fulton County Grand Jury charged Petitioner with murder, felony murder, armed robbery, kidnaping, and four counts of aggravated assault, criminal action number Z69512. (Resp't Ex. 5/Part 1 at 39-47, ECF No. 7-5.) Petitioner, represented by Bruce F. Morriss, pleaded guilty to voluntary manslaughter, armed robbery, and three counts of aggravated assault. ( See id . at 39.) On November 27, 1996, the court imposed twenty-year terms on each count, with the sentence for voluntary manslaughter to run consecutively to the remaining sentences, which were to run concurrently with each other. ( See id . at 57-58; Resp't Ex. 5/Part 2 at 148, ECF No. 7-6.)
On December 27, 1996, Petitioner filed a pro se motion to modify his sentence. (Resp't Ex. 5/Part 4 at 307-10, ECF No. 7-8.) On December 31, 1996, Petitioner sought appointed counsel for post-sentencing remedies. (Id. at 321.) On January 6, 1997, Morriss signed a petition for compensation in which he stated that his representation was fulfilled by the plea disposition. (Id. at 334-339.) On January 15, 1997, the Court appointed the public defender to represent Petitioner. (Id. at 340.) On January 22, 1997, the trial court found that Morriss had completed the services required. (Id. at 334.)
On September 25, 1998, the public defender moved to withdraw on the grounds that a motion to withdraw Petitioner's guilty plea would be untimely, direct appeal would not be proper, an out-of-time appeal was not available, and there was no longer an action pending. (Resp't Ex. 5/Part 2 at 143-46.) Petitioner opposed the motion. (Id. at 181-87.) On September 28, 1998, the trial court granted the motion to withdraw and found that it lacked jurisdiction to entertain a motion to withdraw the plea, that a direct appeal was not the proper avenue to challenge the guilty plea, and that habeas corpus was the appropriate forum for Petitioner to seek relief. (Id. at 149.)
On December 11, 1998, the trial court appointed Lawrence J. Zimmerman to represent Petitioner in his appeal. (Id. at 196.) On May 26, 1999, Zimmerman was allowed to withdraw. (Id. at 159.) On July 28, 1999, the trial court informed Petitioner that the court was no longer responsible for appointing counsel. (Id. at 190.)
On December 13, 2000, Petitioner filed, through new counsel Rodney Zell, a motion to correct void sentence and a motion to withdraw his guilty plea, arguing that Petitioner's earlier pro se motion to modify his sentence should be construed as a motion to withdraw his guilty plea. (Id. at 119-123; Resp't Ex. 5/Part 1 at 116-18, ECF No. 7-5.) On February 16, 2001, the Court granted Petitioner's motions to remove Zell as counsel and to withdraw the motions filed by Zell. (Resp't Ex. 5/Part 1 at 112.)
On July 7, 2008, Petitioner filed a state habeas corpus petition in the Superior Court of Wheeler County, case number 08CV158, which was transferred to the Superior Court of Coffee County. (Resp't Exs. 1-2, ECF Nos. 7-1 and 7-2.) Therein, Petitioner stated that Morriss provided ineffective assistance when he refused Petitioner's request to file an appeal. (Resp't Ex. 1 at 27, 56-57.) After the state habeas corpus hearing, the state moved that the record be reopened and the action be dismissed as untimely, but later withdrew its motion on the grounds that the state habeas court had already held a hearing on the merits of Petitioner's state petition. ( See Resp't Ex. 9 at 2, ECF No. 17-3.) On June 7, 2012, the state habeas court denied Petitioner relief. (Resp't Ex. 3, ECF No. 7-3.) On April 10, 2013, the Georgia Supreme Court denied further review. (Resp't Ex. 4, ECF No. 7-4.)
II. The Federal Petition
Petitioner filed his federal habeas corpus petition on March 24, 2014. (Pet., ECF No. 1.) In the section that asks Petitioner to list any motions concerning his conviction that he may have filed in any state court, Petitioner listed only his motion to correct void sentence and motion to withdraw guilty plea, filed by Zell, and states they were withdrawn. (Id. at 4.)
Respondent initially argued that the action should be dismissed as untimely. (Resp't Br. at 2-5, ECF No. 5-1.) Respondent argued that Petitioner's convictions became final on December 27, 1996, that his state habeas petition was filed too late to provide statutory tolling, and that the petition is untimely. (Id.) Petitioner replied to Respondent's answer-response and argued that his state petition should have been considered timely and that his federal petition was filed within a year of the conclusion of his state habeas corpus proceedings. (Pet'r Reply at 1-12, ECF No. 9; Pet'r Am. Reply at 1-8, ECF No. 11.)
Earlier this year, the Court observed that the record at the time -- Resp't Exs. 1-6 -- was inadequate as to (1) Petitioner's December 27, 1996, pro se motion to modify his sentence and (2) the controversy over the timeliness of his state petition and ordered Respondent to submit additional state records. (Order at 3-4, ECF No. 14.)
Respondent submitted additional exhibits relevant to the timeliness of Petitioner's state petition, (Resp't Exs. 7-8, ECF Nos. 17-1 through 17-3) (referred to in the state procedural background above); states that Petitioner's December 27, 1996 pro se motion to modify his sentence remains pending;  and moves to dismiss the petition for lack of exhaustion. (Resp't Mot. to Dismiss, ECF No. 16.) Petitioner has not timely replied to Respondent's most recent motion. See LR 7.1(B), NDGa.
Under the Antiterrorism and Effective Death Penalty Act (" AEDPA"), a one-year statute of limitations applies to a habeas corpus action attacking a state conviction. As stated at 28 U.S.C. § 2244:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created 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 the 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 the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
In addition to the tolling provision in § 2244(d)(2), the one-year statute of limitations is subject to equitable tolling if the petitioner " shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1207 (11th Cir. 2014) (quoting Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010)) (internal quotation marks omitted). Actual innocence provides an equitable exception, though rare, to AEDPA's time limitations. McQuiggin v. Perkins,
__ U.S. __, __, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013) (stating that the petitioner must " persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt" (quoting Schlup v. Delo, 513 U.S. 298, 329, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)) (internal quotation marks omitted)). To show actual innocence, the petitioner must, " with new reliable evidence--whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence[, ]" demonstrate that " it is more likely than not that no reasonable juror would have convicted him . . . . " Schlup, 513 U.S. at 324, 327-28. " AEDPA's time limitations apply to the typical case in which no allegation of actual innocence is made[.]" McQuiggin, 133 S.Ct. at 1933.
As a preliminary matter, in deference to the State trial court's implicit disregard of Petitioner's pro se motion, the undersigned finds that Petitioner's December 27, 1996 pro se motion to modify his sentence was without legal effect under Georgia law. See Earley v. State, 310 Ga.App. 110, 112-13, 712 S.E.2d 565, 567 (2011) (" Given that Earley was represented by counsel when he filed his pro se motion, that motion was of no legal effect whatsoever."); Schaefer v. State, 238 Ga.App. 594, 594, 519 S.E.2d 248, 249 (1999) (holding that counsel continues to represent defendant until released by the court); Ware v. State, 267 Ga. 510, 511, 480 S.E.2d 599, 600 (1997) (stating that prisoner is represented until counsel or counsel's office is relieved of responsibility). The Court bases this finding on the following: (1) it was not until after December 27 that the trial court found that Morriss had completed his service, (2) the subsequently appointed public defender sought to withdraw on the grounds that there was no justification for filing a post-judgment motion that would be untimely and that there was no action pending (indicating that the public defender regarded the pro se motion to be without effect), (3) the trial court agreed with the public defender and stated that habeas corpus was the appropriate forum for Petitioner to seek relief (implicitly concluding that the pro se motion was without effect), (4) the trial court did not mention or address Petitioner's pro se motion when it allowed counsel Zell to withdraw his motions that pertained to Petitioner's pro se motion, and (5) Petitioner was operating under the belief that Morriss continued to represent him after November 27, as shown by his claim in his state habeas petition that Morriss was ineffective for refusing his request to file an appeal.
Accordingly, Petitioner's convictions became final on December 27, 1996, upon expiration of the thirty-day time period for seeking appellate review of his November 27, 1996 convictions. See O.C.G.A. § 5-6-38. Under § 2244(d)(1)(A),  Petitioner had until December 27, 1997 in which to file a federal habeas corpus petition, which he did not do. Petitioner's 2008 state habeas corpus petition was filed too late to provide statutory tolling. See Lugo, 750 F.3d at 1208 (" The filing of Lugo's . . . ...