United States District Court, M.D. Georgia, Macon Division
December 5, 2014
JOHN McNAUGHTON ENGLISH, SR., Petitioner,
Warden DOUG WILLIAMS, Respondent.
MARC T. TREADWELL, District Judge.
Before the Court is the Recommendation of Magistrate Judge Stephen Hyles. (Doc. 15). The Magistrate Judge recommends granting the Respondent's motion to dismiss (Doc. 6) because the Petitioner did not file his 28 U.S.C. § 2254 petition within AEDPA's one-year period of limitations. The Petitioner objected to the Recommendation and requested an appointment of counsel and an evidentiary hearing "for habeas corpus relief." (Doc. 16). The Respondent opposed these requests. (Doc. 18). Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Petitioner's objection and made a de novo determination of the portions of the Recommendation to which the Petitioner objects.
The Court agrees that the petition was filed outside AEPDA's one-year limitations period. However, 28 U.S.C. § 2244(d)(2) tolling stopped when the remittitur was returned to the trial court on March 18, 2013,  not when the Georgia Supreme Court denied the Petitioner's application for a certificate of probable cause as stated in the Recommendation (Doc. 15 at 4). See Day v. Chatman, 130 F.Appx. 349, 350 (11th Cir. 2005).
The Court has reviewed the Recommendation and accepts the findings, conclusions and recommendations of the Magistrate Judge except as modified by this Order. The Recommendation is ADOPTED and made the order of this Court. Thus, the Petitioner's requests for an appointment of counsel and an evidentiary hearing are moot. Further, the Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Therefore, the Respondent's motion to dismiss is GRANTED, and a certificate of appealability is DENIED.