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Hewitt v. Allen

United States District Court, S.D. Georgia, Dublin Division

November 26, 2014

JAMES K. HEWITT, Petitioner,
v.
MARTY ALLEN, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPPS, Magistrate Judge.

Petitioner brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition, challenging two judgments in Laurens County, was originally brought in the Middle District of Georgia. (Doc. no. 4.) United States District Judge Hugh Lawson transferred the petition to this District because it is the policy of the Northern, Middle, and Southern Districts of Georgia to adjudicate § 2254 petitions in the district of conviction. (See generally id.) The petition is currently before the Court on Respondent's motion to dismiss the petition as untimely. (Doc. no. 15.) Even after prompting from the Court, (doc. no. 17), Petitioner failed to respond to Respondent's motion, and it is thus deemed unopposed, see Loc. R. 7.5. For the reasons set forth below, the Court REPORTS and RECOMMENDS that Respondent's motion to dismiss be GRANTED (doc. no. 15), this petition be DISMISSED as untimely, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

On December 6, 2005, Petitioner was indicted by a Laurens County grand jury in two separate indictments for murder, armed robbery, and two counts of possession of a firearm by a convicted felon. (Doc. nos. 16-5, 16-6.) On August 22, 2007, Petitioner plead guilty to armed robbery, voluntary manslaughter as a lesser-included offense of murder, and one count of felon in possession of a firearm in two separate guilty pleas corresponding to each indictment. Id . Petitioner was sentenced to twenty years of confinement for both the armed robbery and voluntary manslaughter charges to run concurrently and five years of probation to run consecutively to the prison sentence for the felon in possession charge. Id . The remaining felon in possession of a firearm count was dismissed through entry of an order of nolle prosequi . Id . Petitioner's judgment of conviction for the armed robbery charge was entered on September 6, 2007, and the murder and felon in possession charges were entered on September 5, 2007. (Doc. no. 16-5, p. 5; doc. no. 16-6, p. 4.) Petitioner did not appeal either judgment of conviction. (Doc. no. 16-1, p. 1; doc. no. 8, p. 2.)

On June 1, 2009, Petitioner filed his state habeas corpus petition in Lowndes County challenging the afore mentioned convictions. (Doc. no. 16-1.) Evidentiary hearings were held on October 14, 2010, and April 12, 2012, and the state habeas court denied relief in a final order filed on May 30, 2013. (Doc. no. 16-2.) Petitioner's application for a certificate of probable cause to appeal was denied by the Georgia Supreme Court on November 4, 2013. (Doc. no. 16-3.) The Georgia Supreme Court also denied Petitioner's motion for reconsideration. (Doc. no. 16-4.)

On April 14, 2014, Petitioner filed this § 2254 petition, challenging his Laurens County convictions and sentences, contending that his guilty plea was unknowing and involuntary due to his belief that his state sentence would run concurrently with a federal conviction entered in May of 2007 in the Middle District of Georgia.[1] (See doc. no. 12; United States v. Hewitt, CR 505-066 (S.D. Ga. May 2, 2007).) Respondent has filed a motion to dismiss contending that the § 2254 petition is untimely under 28 U.S.C. § 2244(d).

II. DISCUSSION

A. The Instant Petition Should Be Dismissed as Time-Barred.

Pursuant to 28 U.S.C. § 2244, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), there is a one-year statute of limitations for § 2254 motions that runs 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 ...

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