United States District Court, S.D. Georgia, Savannah Division
JOSEPH E. ALLEN, Petitioner,
HILTON HALL, Respondent.
REPORT AND RECOMMENDATION
a Chatham County, Georgia jury convicted petitioner Joseph
Allen of, inter alia, armed robbery and kidnapping.
Doc. 1 at 3; see also Allen v. Tatum, No. CV414-169
at doc. 3; Allen v. State, 268 Ga.App. 519, 533-34
(2004) (affirming conviction and double life sentence plus 25
years). In June 2010 he sought state habeas relief, but it
was denied on merits. Doc. 1 at 3-4. He next sought federal
habeas relief here, but this Court directed him to show cause
why his petition should not be denied on timeliness grounds.
No. CV414-169 at doc. 3. When he failed to respond, it
dismissed his case for want of prosecution. Id. at
docs. 12 & 13.
then filed for state habeas relief in another state court,
but in October 2015 that court denied it as untimely and
successive. Doc. 1 at 3-4. He now petitions this Court for 28
U.S.C. § 2254 relief. Id. Preliminary review
under Rule 4 of the Rules Governing Section 2254 Cases shows
that his petition must be dismissed.
had to file for § 2254 relief within one year after the
date his conviction became final. 28 U.S.C. §
2244(d)(1). That clock is stopped only by the pendency
of a properly filed state collateral review proceeding. 28
U.S.C. § 2244(d)(2); Rich v. Sec'y for Dep't
of Corr., 512 F.App'x 981, 982-83 (11th Cir. 2013);
Nesbitt v. Danforth, 2014 WL 61236 at * 1 (S.D. Ga.
Jan. 7, 2014) ("28 U.S.C. § 2244(d)(1)'s
one-year clock ticks so long as the petitioner does not have
a direct appeal or collateral proceeding in play.").
Hence, sitting on any claim and creating time gaps between
proceedings can be fatal. Kearse v. Sec'y, Fla.
Dep't of Corr., 736 F.3d 1359, 1362 (11th Cir.
2013); Nesbitt, 2014 WL 61236 at * 1. And once the
one-year clock runs out, it cannot be restarted or reversed
merely by filing a new state court or federal action.
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
2000) (a state post-conviction motion filed after expiration
of the limitations period cannot toll the period, because
there is no period remaining to be tolled); Nowill v.
Barrow, 2013 WL 504626 at * 1 n. 3 (S.D. Ga. Feb. 8,
2013); Dixon, 2013 WL 2385197 at * 3;
Nesbitt, 2014 WL 61236 at * 1.
Georgia Court of Appeals affirmed Allen's conviction and
sentence on July 15, 2004. Pursuant to that court's
rules, he then had ten days to file a notice of intent to
petition for a writ of certiorari. Ga.Ct.App. R. 38(a)(1).
Certiorari was denied on October 12, 2004, making his
conviction final as of that date.
then had one year -- until October 12, 2005 -- to either file
a § 2254 petition or toll the limitations period by
seeking state collateral relief. 28 U.S.C. § 2244(d)(2);
Rich, 512 F.App'x at 982-83. His first state
habeas petition was apparently timely, as it was decided on
the merits in June 2010. Doc. 1 at 3. His second state habeas
petition, however, was deemed "untimely and
successive" in October 2015. That second state petition
therefore had no tolling effect, since no time remained on
his § 2254 clock. Webster, 199 F.3d at 1259.
that, his untimely petition "may still be timely if the
petitioner is entitled to equitable tolling."
Aureoles v. Sec'y, D.O.C., 609 F.App'x 623,
624 (11th Cir. 2015) (citing Damren v. Florida, 776
F.3d 816, 821 (11th Cir. 2015)). "A petitioner is
entitled to equitable tolling if he can demonstrate that: (1)
he has pursued his rights diligently; and (2) an
extraordinary circumstance prevented him from filing a timely
petition." Id.; Holland v. Florida, 560 U.S.
631, 649 (2010).
however, presents nothing to indicate an extraordinary
circumstance stood in the way of timely filing. He contends
that certain exculpatory documents his trial counsel had
requested were improperly withheld by the State. See
doc. 1 at 35 (asking the Court to excuse his untimeliness
because "neither [he] nor his counsel w[ere] aware of
these non-disclosed reports as a result of the State's
failure to provide them in discovery[.] [T]he reports were
discovered only after the denial of Allen's direct appeal
when [he] filed an open records request."); id.
at 69 (letter file-dated March 16, 2005 requesting copies of
certain police records regarding "Alton Lovett" and
"James Eussel Simmons").
says these records demonstrate that he was misidentified, and
someone else committed the crimes he had been charged with.
Doc. 1 at 6. Identification was a critical defense at trial.
See Allen, 268 Ga.App. at 531-33. But he has failed
to explain the delay in exploiting these documents for the
relief he seeks.
he has had copies of these "new" exculpatory
records since at least May 2005 -- meaning they've been
around for both State habeas actions. Id. at 74
(cover letter dated April 26, 2005, informing Allen his Open
Records request was granted, with Simmons' and
Lovett's records enclosed). Nothing new has popped up
that was unavailable to him during the past decade and two
rounds with the State habeas rodeo. There is no indication
Allen has diligently pursued his rights or that some
"extraordinary circumstance" prevented him from
timely filing a petition in this Court. See Holland,
560 U.S. at 649; Aureoles, 609 Fed.App'x at 624.
See also No. CV414-169 at docs. 9, 12 & 13
(dismissing apparently untimely § 2254 motion for
failure to prosecute).
Joseph E. Allen's § 2254 petition is untimely and
should be DISMISSED. 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 either. 28 U.S.C.
§ 2253(c)(1); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2254 ("The district
court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.") (emphasis added). Any motion for leave to
appeal in forma pauperis therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 F.App'x 787, 790 (11th Cir. 2016);
Mitchell v. U.S., 612 F.App'x 542, 545 (11th