United States District Court, M.D. Georgia, Macon Division
MARC T. TREADWELL, District Judge.
Before the Court is the Report and Recommendation of Magistrate Judge Charles H. Weigle. (Doc. 11). The Magistrate Judge recommends granting the Respondent's motion to dismiss (Doc. 6), dismissing as untimely the Petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and denying a certificate of appealability. The Petitioner has filed an objection to the Recommendation. (Doc. 12).
On May 6, 2008, the Petitioner pled guilty to aggravated assault and cruelty to children in Jasper County Superior Court ("the Superior Court"). (Doc. 9-2 at 2). The Petitioner did not file a direct appeal. On March 9, 2009, the Petitioner filed a motion for an out-of-time appeal in the Superior Court, which was denied on March 18, 2009. (Docs. 7-2; 7-3). According to the Magistrate Judge, the Petitioner appealed the Superior Court's denial of the motion "[m]ore than two years" later, which was denied by the Georgia Court of Appeals on June 8, 2011. (Docs. 7-4; 11 at 1). On October 30, 2009, the Petitioner filed a state habeas petition in Ware County Superior Court, which was denied on September 9, 2013. (Docs. 7-5; 7-6). On October 7, 2013, the Petitioner filed an application for certificate of probable cause, which the Georgia Supreme Court denied on April 22, 2014. (Docs. 7-7; 9 at 2). It is unclear when the remittitur was returned to the Ware County Superior Court. On June 19, 2014, the petitioner filed his federal petition. (Docs. 1; 7-7).
The Magistrate Judge determined that the Petitioner's conviction became "final" for purposes of AEDPA's one-year limitations period on June 5, 2008. (Doc. 11 at 2). The petitioner did not file an application for state post-conviction or other collateral review that could potentially toll the limitations period until he filed his motion for an out-of-time appeal on March 9, 2009. The Magistrate Judge assumed arguendo that the limitations period was tolled during the pendency of the motion-from March 9 to March 18, 2009. (Doc. 11 at 2). As a result, the limitations period expired on June 15, 2009. Because the Petitioner did not file his state habeas petition until October 30, 2009, the Magistrate Judge concluded the petition was untimely. The Magistrate Judge also concluded that the Petitioner's only argument regarding equitable tolling-that he was "misinformed of proper appeal process"-did not warrant equitable tolling. (Doc. 11 at 3).
The Petitioner objects to the Magistrate Judge's conclusion that he did not appeal the Superior Court's denial of his motion for an out-of-time appeal until more than two years later. (Doc. 12 at 1). In his objection, the Petitioner alleges he promptly appealed the denial of the motion but the process of "seeking to establish his appeal rights took two years." (Doc. 12 at 3). The Petitioner makes several allegations to support this claim. The Court construes this portion of the objection as a motion to amend the petition and grants it. See Newsome v. Chatham Cnty. Det. Ctr ., 256 F.Appx. 342, 344 (11th Cir. 2007) (holding district court should have considered new allegations in objection as motion to amend the complaint).
The Petitioner makes the following allegations. On March 25, 2009, the Petitioner filed a notice of appeal of the Superior Court's order denying his motion for an out-of-time appeal. (Docs. 12 at 1; 15-1). On April 20, 2009, the Petitioner wrote to the Georgia Court of Appeals and inquired about the "receipt of his appeal." (Doc. 12 at 2). On April 23, 2009, the Georgia Court of Appeals informed the Petitioner that "there is no case pending in the Court of Appeals styled in your name." (Docs. 12 at 2; 15-2). On May 14, 2009, the Petitioner again wrote to the Georgia Court of Appeals. (Doc. 12 at 2). On May 19, 2009, the Georgia Court of Appeals responded by referring the Petitioner to two Georgia statues: one that sets out "the requirements for the contents of the Notice of Appeal" and one that sets out "the time frames for filing the Notice of Appeal." (Docs. 12 at 2; 15-3). The Georgia Court of Appeals also informed the Petitioner that the notice of appeal is filed with the clerk of the trial court and that the "remedy if a public official refuses to do his or her public duty is through mandamus." (Doc. 15-3).
On May 18, 2009, the Petitioner attempted to file an amended notice of appeal in the Superior Court by sending the notice through certified mail. (Doc. 12 at 2). The certified mail was returned to the Petitioner because the clerk of Jasper County Superior Court ("the Jasper County Clerk") refused to sign for it. (Docs. 12 at 2; 15-5; 15-6 at 5). On June 25, 2009, the Petitioner filed a writ of mandamus against the Jasper County Clerk, alleging, inter alia, that the Jasper County Clerk "stated [he] was not entitled to appeal the denial of his motion and that the trial court's decision was final." (Docs. 12 at 2; 15-6 at 5). The Petitioner requested that the Jasper County Clerk "file [his] notice of appeal... so that [he] [may] proceed with his appellate review." (Doc. 15-6 at 6). The Petitioner also requested that "said notice of appeal be deemed as filed timely as it was filed within 30 days of the denial of said motion." (Doc. 15-6 at 6).
The Petitioner wrote to the Georgia Court of Appeals three more times. (Doc. 12 at 2-3). On June 30, 2009, the Georgia Court of Appeals responded that "we do not have a case styled in your name pending in this Court." (Docs. 12 at 2; 15-7). On August 26, 2009, the Georgia Court of Appeals responded that "there is still no case docketed in this Court in you [sic] name." (Docs. 12 at 2; 15-9). And, on May 6, 2010, the Georgia Court of Appeals responded that "we do not have a case styled in your name pending in this Court." (Doc. 15-13). Meanwhile, "with his appeal status still pending, " the Petitioner filed his state habeas petition on October 30, 2009. (Doc. 12 at 3). On December 30, 2009, the Georgia Court of Appeals forwarded the Petitioner a letter it sent to the Jasper County Clerk. (Docs. 12 at 2-3; 15-12). The letter reads:
Enclosed please find the record in the above appeal which was forwarded from your office to ours. Please be advised that we are unable to docket this appeal because the record does not contain a Notice of Appeal. Additionally, there is a pending Motion for Out-of-Time Appeal found on page 27 of the record.
On January 13, 2010, the Petitioner filed a federal action against the Jasper County Clerk pursuant to 42 U.S.C. § 1983. Thurman v. Jordan , No. 5:10-cv-22-CAR (M.D. Ga.). The Court held a hearing on April 25, 2011. The Court observed that the Petitioner wanted an order "directing [the Jasper County Clerk] to accept his Notices of Appeal and to forward his Notices of Appeal and the record and transcript of his case to the Georgia Court of Appeals." Thurman , No. 5:10-cv-22-CAR, (Doc. 34 at 2). The Jasper County Clerk "was amenable to complying with such an order." Id. at 3. Thus, in the interest of "avoiding the time and costs of an unnecessary trial, " the Court ordered the Jasper County Clerk to accept the Petitioner's notices of appeal and forward them to the Georgia Court of Appeals, along with a copy of the Court's Order and the transcript and record from the Petitioner's criminal case. Id. Finally, the Court "request[ed] that having received the Notices of Appeal and the record and transcript of [the Petitioner's] criminal case, as directed by this Order, the Georgia Court of Appeals give the matter due consideration." Id.
It appears the Jasper County Clerk complied with the Court's Order because the Georgia Court of Appeals rendered a decision on June 8, 2011, less than two months later. (Doc. 7-4). The decision, however, does not discuss or acknowledge the Petitioner's plight. After noting Georgia law requires that a notice of appeal be filed within 30 days of the entry of the appealable judgment, the Georgia Court of Appeals held:
[The Petitioner's] notice of appeal, however, was filed more than two years after the order from which he appeals was entered. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon this Court.... Accordingly, we lack jurisdiction to consider [the Petitioner's] appeal, and this appeal is hereby DISMISSED.
(Doc. 7-4). The Petitioner argues he did not wait "more than two years" to appeal the denial of his motion for an out-of-time appeal. (Doc. 12 at 3). He argues he has been diligently pursuing his rights and is entitled to ...