United States District Court, S.D. Georgia, Savannah Division
May 29, 2015
ROBERT LEE JONES, Petitioner,
CLAY TATUM, Warden, Respondent.
REPORT AND RECOMMENDATION
G. R. SMITH, Magistrate Judge.
"A Chatham County jury found Robert Lee Jones guilty of impersonating a police officer, OCGA § 16-10-23; burglary, OCGA § 16-7-1(a); and armed robbery, OCGA § 16-8-41(a)." Jones v. State, 315 Ga.App. 427, 427 (2012); id. at 434 (conviction affirmed). In preliminarily reviewing his 28 U.S.C. § 2254 petition under Rule 4 of the Rules Governing Section 2254 Cases, the Court directed the State to confirm (if not move to dismiss based upon) key filing dates showing whether Jones timely sought § 2254 relief. Doc. 3. It now moves to dismiss, doc. 8, contending that his petition is time barred. Doc. 8.
The Georgia Court of Appeals affirmed Jones' conviction on April 6, 2012, Jones, 315 Ga.App. 427, so under Georgia Supreme Court Rule 38 Jones had 10 days to appeal. He did not. The one year clock thus started on April 16, 2012, so to stop it he had to file for some sort of collateral relief by April 16, 2013. Jones petitioned a state habeas court on April 2, 2012, doc. 9-1 at 1, actually jumping the gun by a few days. That court denied relief on September 13, 2012. Doc. 9-2 at 1. Because he had filed his state habeas action, he now had, per 28 U.S.C. § 2244(d)(2), until September 13, 2013 to file the next clock-stopping item.
He did. The State does not say when, but he obviously appealed to the Georgia Supreme Court, which denied relief (but not on untimeliness grounds) on April 15, 2013. Doc. 9-3 at 1. Assuming arguendo that Jones had consumed no days until April 15, 2013, his new one-year deadline was April 15, 2014. However, he took no further action until April 23, 2014, when he filed his second state habeas petition. Doc. 9-4 at 1. Assuming that petition was permissible in state court ( i.e., it was not successive) and thus could stop the clock, it nevertheless was too late since more than a year had passed, and Jones cannot now use § 2254 to restart an expired limitations period. See supra n. 1.
Evidently sensing the writing on the wall, Jones has filed a "Supplemental Habeas Corpus Petition." Doc. 10. There he alleges that his "legal materials w[ere] withheld, wrongfully, by prison officials while he was in lock-down, which delayed his ability to continue to meet critical deadlines." Id. at 1. He says that he even sought the help of a federal district judge. Id. He thus invokes "equitable tolling" and insists that he is "actually innocent." Id. at 1-2. Relatedly, he moves for an evidentiary hearing and for appointment of counsel. Doc. 12. Finally, he renews his factual innocence claim. Id. at 1-2.
One can overcome § 2244(d)'s time-bar by a showing of actual innocence, McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1936 (2013), but that requires a substantial showing, and "tenable actual-innocence gateway pleas are rare." Id. at 1928. Hence, it must be "more likely than not that no reasonable juror would have convicted [Jones] in the light of the new evidence." Id. at 1935 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Jones thus must "produce new, reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Melson v. Allen, 548 F.3d 993, 1002 (11th Cir. 2008) (quotes and cite omitted); Carroll v. Price, 2015 WL 225468 at * 5 (N.D. Ala. Jan. 16, 2015).
Petitioner plies only conclusions here, not new evidence. Compare McQuiggin, 133 S.Ct. at 1929 ("He relied on three affidavits, each pointing to Jones, not Perkins, as Henderson's murderer."); Carroll, 2015 WL 225468 at * 6 ("The affidavit of Billy Wayne Johnson proffered by petitioner does not make an adequate showing of actual innocence for purposes of the McQuiggin gateway."). Jones' actual innocence claim thus fails. Grayson v. McCollum, 594 F.Appx. 556, 557 (10th Cir. 2015) ("Mr. Grayson did not present the district court with any new evidence of innocence. As a result... [he] failed to satisfy his burden of proving actual innocence.").
Likewise, petitioner's equitable tolling defense fails. Such tolling can be applied to prevent the application of the one-year deadline if a petitioner "shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Generalized claims of lockdown-caused loss of legal materials will not suffice. Moore v. Frazier, 2015 WL 1424198 at * 3 (11th Cir. Mar. 31, 2015) ("periods in which a prisoner is separated from his legal papers are generally not extraordinary circumstances for which equitable tolling is appropriate."); Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004) ("lockdowns and periods in which a prisoner is separated from his legal papers are not extraordinary circumstances' in which equitable tolling is appropriate.").
Accordingly, the Court should GRANT the State's motion to dismiss (doc. 8) and thus DISMISS WITH PREJUDICE Robert Lee Jones' 28 U.S.C. § 2254 petition. Doc. 1. In that regard, he is not entitled to an evidentiary hearing (he presents no material fact issue; in fact his claims are meritless) or assistance of counsel,  so those motions (doc. 12) are DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED.