United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner brings the above-captioned case pursuant to 28 U.S.C. § 2254, and seeks permission to proceed in forma pauperis ("IFP"). This case is before the Court for initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The Court REPORTS and RECOMMENDS that Petitioner's motions to proceed IFP be DENIED AS MOOT, (doc. nos. 2, 4), his § 2254 petition be DISMISSED as untimely, and that this civil action be CLOSED.
A jury in the Superior Court of Richmond County convicted Petitioner of child molestation and incest. Following the denial of his motion for a new trial, Petitioner appealed to the Georgia Court of Appeals, which affirmed the convictions on February 5, 2013. Rhodes v. State, 738 S.E.2d 135 (Ga.App. 2013). Petitioner did not seek a writ of certiorari from the Georgia Supreme Court, and he does not report having filed a petition for state habeas corpus relief. Petitioner executed the instant federal habeas corpus petition on December 11, 2014, and the Clerk of Court filed the petition on December 17, 2014. (Doc. no. 1.) Petitioner claims there was insufficient evidence to convict him, he was improperly arrested without being shown a warrant or read his Miranda rights, he received ineffective assistance of trial counsel, and his motion for a new trial should have been granted. (See generally id.)
A. The Petition Is Time-Barred.
Pursuant to AEDPA, 28 U.S.C. § 2244(d), there is a one-year statute of limitations for § 2254 motions that runs from the latest of:
(1)(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.
Under § 2244(d)(1)(A), a judgment becomes final upon "the conclusion of direct review or the expiration of the time for seeking such review." Here, Petitioner filed a direct appeal, and the Georgia Court of Appeals affirmed Petitioner's convictions on February 5, 2013. Petitioner did not file a motion for reconsideration or appeal his case to the Georgia Supreme Court. Thus, his conviction became "final" when the ten-day time period for indicating intent to seek review in the Georgia Supreme Court expired. See Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000) ("The statute specifies that during direct appeal the tolling lasts until (or more accurately, the limitations period begins to run from) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.'"); Ga. Sup.Ct. R. 38(1) (providing that party seeking review in Georgia Supreme Court must file notice of intention to apply for certiorari with the Court of Appeals of Georgia within ten days after entry of judgment by that Court). Moreover, as Petitioner did not appeal to the Georgia Supreme Court, he was not entitled to seek review in the United States Supreme Court and is therefore not entitled to benefit from the ninety-day period for filing a writ of certiorari in the United States Supreme Court. See Pugh v. Smith, 465 F.3d 1295, 1299-1300 (11th Cir. 2006).
The Court recognizes that, pursuant to 28 U.S.C. § 2244(d)(2), the one-year statute of limitations does not run while a properly filed application for state post-conviction relief or other collateral review is pending in state court. Cramer v. Sec'y Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006). Here, however, Petitioner does not report having filed for post-conviction relief in state court beyond the motion for new trial and direct appeal to the Georgia Court of Appeals described above. Therefore, AEDPA's statute of limitations began to run ten days following the Georgia Court of Appeals' affirmance of Petitioner's convictions on February 5, 2013, and for the purpose of determining the timeliness of Petitioner's request for federal habeas corpus ...