United States District Court, S.D. Georgia, Dublin Division
REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner filed the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondent's motion to dismiss the petition as untimely (doc. no. 7), which Petitioner opposes (doc. no. 12). For the reasons set forth below, the Court REPORTS and RECOMMENDS that Respondent's motion to dismiss be GRANTED, this petition be DISMISSED as untimely, and a final judgment be ENTERED in favor of Respondent.
On April 16, 2009, Petitioner pled guilty in the Superior Court of Treutlen County to four counts of child molestation. (Doc. no. 8-1, p. 16.) Petitioner received a total sentence of thirty years, consisting of ten years of incarceration and twenty years of probation. (Id. at 17.) Petitioner did not file a direct appeal following his conviction. (Doc. no. 1, p. 3.)
On February 7, 2011, Petitioner filed a petition for a writ of habeas corpus in the Superior Court of Baldwin County. (Doc. no. 8-2.) Petitioner moved to dismiss this petition and the state habeas court entered an order of voluntary dismissal on March 23, 2011. (Doc. no. 8-3.) On October 11, 2011, Petitioner filed a second petition for a writ of habeas corpus in the Superior Court of Lowndes County. (Doc. no. 8-4.) Following a hearing, the state habeas court denied Petitioner's second petition on December 3, 2013. (Doc. no. 85.) The Georgia Supreme Court denied as untimely Petitioner's application for a certificate of probable cause to appeal the denial of his second petition on March 3, 2014. Siefken v. Danforth, No. S14H0644 (Ga. Mar. 3, 2014). The Georgia Supreme Court denied Petitioner's motion for reconsideration of the denial on April 10, 2014. Siefken v. Danforth, No. S14H0644 (Ga. Apr. 10, 2014).
The instant § 2254 petition was signed by Petitioner on April 28, 2014 and filed by the Clerk of Court on May 28, 2014. (Doc. no. 1.) Respondent asserts the petition should be dismissed as time-barred under 28 U.S.C. § 2244(d). (See doc. no. 7.) In Petitioner's response to the motion to dismiss, he stated that he filed a motion to modify sentence in the Superior Court of Treutlen County within one year of the date he was sentenced. (Doc. no. 12, p. 3.) In an Order dated October 21, 2014, the Court found that the timeliness of the petition hinges on whether Petitioner's motion to modify sentence had a tolling effect on the statute of limitations period. (Doc. no. 15.) Because additional information was needed regarding Petitioner's motion and its tolling effect, if any, the Court directed the parties to file supplemental briefs addressing this issue. (Id.) Respondent has submitted a brief, (doc. no. 16), but the time to respond has passed and Petitioner has not submitted additional briefing. Respondent attached Petitioner's motion to modify sentence to his brief, showing that it was not filed within one year of the date Petitioner was sentenced, but instead was filed on March 8, 2011. (Doc. no. 17-1.) Thus, Respondent asserts, Petitioner's motion did not toll the statute of limitations period. (Doc. no. 16.)
A. Petitioner's § 2254 Petition is Untimely.
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 ...