United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation ("R&R") . The R&R considers Petitioner Arnold Vernard Porter's ("Petitioner") Petition for Writ of Habeas Corpus ("Petition")  and Respondent Steven Perkin's ("Respondent") Motion to Dismiss as Untimely  ("Motion to Dismiss") and Motion to Dismiss for Lack of Exhaustion  ("Exhaustion Motion"). The Magistrate Judge recommended that Respondent's Motion to Dismiss be granted and the Petition be dismissed as untimely. The Magistrate Judge recommended also that a Certificate of Appealability ("COA") not be issued.
On November 27, 1996, Petitioner pleaded guilty and was sentenced to: (i) twenty years for voluntary manslaughter, as a lesser included offense of malice murder (Count 1); (ii) twenty years, consecutive to Count 1, for armed robbery (Count 3); and (iii) twenty years, concurrent to Count 3, for aggravated assault (Counts 5, 7, and 8). (Doc. 7-5, at 57-58; see also Doc. 7-6 at 30). Petitioner did not appeal his conviction. (Doc. 7-1 at 1). On December 27, 1996, Petitioner, proceeding pro se, filed a "motion to modify sentence" in the state court. (Doc. 7-8 at 14-18). The state court never addressed this motion.
On July 7, 2008, over eleven years after he was convicted, Petitioner filed a habeas corpus petition in the Superior Court of Wheeler County, Georgia, which was denied on June 7, 2012. (Doc. 7-1 at 1; Doc. 7-3 at 1). Petitioner filed an application for a certificate of probable cause in the Georgia Supreme Court, which was denied on April 10, 2013. (Doc. 7-4).
On March 15, 2014, Petitioner filed his Petition pursuant to 28 U.S.C. § 2254. On May 5, 2014, Respondent filed an Answer , asserting several defenses, including that the Petition was untimely. On the same day, Respondent filed his Motion to Dismiss, arguing that the Petition was not filed within the one-year limitations period set forth in 28 U.S.C. § 2244(d).
On May 20, 2014, Petitioner filed Response  to the Motion to Dismiss and his identical Reply  to Respondent's Answer. On May 29, 2014, Petitioner filed his "Motion to Amend - Motion Not to Dismiss Petition As Untimely - Reply to Respondent's Answer-Response" [10, 11]. In his Response and motion to amend, Petitioner appears to be arguing that his state petition should have been considered timely and that the Petition was timely filed within one year of the conclusion of his state habeas corpus proceedings. On October 16, 2014, Respondent filed the Exhaustion Motion. Petitioner did not file a response to the Exhaustion Motion.
On November 14, 2014, the Magistrate Judge issued his R&R, recommending that the Petition be denied as untimely, because the one-year limitations period for Petitioner to file a § 2254 petition expired on December 27, 1997. (R&R at 10). Petitioner's time for filing was not tolled because he did not seek state collateral review until July 7, 2008, after his one-year limitations period had expired. (R&R at 4, 10). The Magistrate Judge recommended that a COA not be issued. (R&R at 11-12). The Magistrate Judge recommended also that Respondent's Exhaustion Motion be denied as moot. Petitioner did not file any objections to the R&R.
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the district judge must conduct a plain error review of the record. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983).
1. Untimeliness and Statutory Tolling
The Magistrate Judge, after a careful and thorough review of the record, recommended in his R&R that the Court grant Respondent's Motion to Dismiss, dismiss the Petition as untimely, and deny granting a COA. Because Petitioner did not object to the Magistrate Judge's finding that the Petition was untimely and statutory tolling does ...