United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKERUNITED STATES MAGISTRATE JUDGE.
Comminy Crawford ("Crawford"), who is currently
incarcerated at Whitworth Women's Facility in Hartwell,
Georgia, filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 challenging her conviction obtained
in the Toombs County, Georgia, Superior Court. (Doc. 1.)
Respondent filed an Answer-Response and a Motion to Dismiss,
(docs. 17, 18), and Crawford filed a Response to
Respondent's Motion to Dismiss. (Doc. 21.) For the
reasons which follow, I RECOMMEND that the Court DENY
Respondent's Motion to Dismiss. (Doc. 18.)
entered an Alford plea to one count of shoplifting in the
Toombs County Superior Court on November 19, 2014. (Doc.
19-1, p. 1.) She was given a sentence often years, with five
to serve in prison, pursuant to O.C.G.A. § 17-10-7(c).
(Id.) Crawford did not file a direct appeal.
filed a motion to modify her sentence in the Toombs County,
Georgia, Superior Court on May 15, 2015, which that court
denied on May 21, 2015. (Docs. 19-2, 19-3.) Crawford then
filed a state habeas corpus petition on June 9,
2015. (Doc. 19-4.) She alleged prosecutorial
misconduct and that she was denied effective assistance of
counsel. (Doc. 19-4, pp. 5-6.) Following an evidentiary
hearing on October 28, 2015, the state habeas court denied
relief on March 22, 2016. (Doc. 19-5.) Crawford did not file
an application for a certificate of probable cause to appeal
the state habeas court's denial of relief.
filed this federal petition for writ of habeas corpus on
November 7, 2016. (Doc. 1.) Crawford challenges her Toombs
County convictions on four grounds. First, Crawford alleges
that her counsel was ineffective because her counsel failed
to appropriately investigate the facts pertaining to
Crawford's shoplifting charges. (Id. at p. 7.)
Second, Crawford alleges that she was improperly classified
as a repeat offender under O.C.G.A. § 17-10-7(c).
(Id.) Third, Crawford alleges prosecutorial
misconduct, citing the prosecutor's failure to provide
notice that he intended to introduce her prior convictions.
(Id.) Finally, Crawford alleges that her counsel
failed to present any mitigating circumstances.
avers Crawford's Petition was untimely filed and should
be dismissed. (Doc. 18.) Crawford responds that, if her
Petition is untimely, the Court should excuse her
untimeliness because the state habeas court "sent
paperwork and legal documents late and to [the] wrong
address." (Doc. 21, p. 1.) The Court now addresses
determine whether Crawford's petition was filed in a
timely manner, the Court must look to the applicable statute
of limitations periods. A prisoner must file a petition for
writ of habeas corpus in federal court within one (1) year.
28 U.S.C. § 2244(d)(1). This statute of limitations
period shall run from the latest of four possible dates:
(A) the date on which the judgment of conviction becomes
final by the conclusion of direct review or the expiration of
time for seeking such review;
(B) the date on which the impediment to filing an application
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 that 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