United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted of cruelty to children charges, Roderick Jackson
petitions this Court for 28 U.S.C. § 2254 relief. Doc.
1. The State moves to dismiss, arguing that it is untimely
under § 2254's limitation statute, 28 U.S.C. §
2244(d)(1). Doc. 5; doc. 5-1. The state trial court sentenced
Jackson on March 14, 2012, doc. 6-1 at 1, denied his motion
to withdraw his guilty plea on November 13, 2012, doc. 6-3 at
2, and on November 26, 2013 granted his request to dismiss
"all pending motions[, ] including [his] notice of
appeal." Doc. 6-4 at 1.
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 direct appeal or 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.").
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,
O.C.G.A. § 5-6-38, Jackson's convictions and
sentences became "final"thirty days after November
26, 2013 -- the expiration of the time for filing a notice of
appeal of the trial court's dismissal order. Jackson
filed his state habeas petition in July 2013 -- months before
the state trial court dismissed, per his request, "all
pending motions and the notice of appeal." Doc. 6-4 at
1; doc. 6-5 at 1, 7. The State concedes that by filing his
state habeas petition before entry of that dismissal order,
Jackson stopped § 2244(d)(1)'s clock. Doc. 5-1 at 5.
November 4, 2014, the state habeas court denied relief. Doc.
6-6 at 1. Under O.C.G.A. § 9-14-52(b), Jackson then had
30 days to file a notice of appeal in the superior court and
a Certificate of Probable Cause (CPC) application in the
Georgia Supreme Court (Georgia's requirements to appeal
that ruling). King v. Warden, 665 F.App'x 785,
787 (11th Cir. 2016). He filed a CPC application but failed
to also file a notice of appeal in the superior court, so the
Georgia Supreme Court dismissed the CPC application because
he missed the 30-day, appeal-notice deadline as of December
4, 2014. Doc. 6-7 at 1. That CPC attempt therefore was not
"properly filed, " so the clock was not stopped and,
consequently, it resumed ticking on December 5, 2014.
Wade v. Battle, 379 F.3d 1254, 1262 (11th Cir.
2004). Under § 2244(d)(1)(A), that gave him until
Monday, December 7, 2015,  to file it. By waiting until December
12, 2016, he simply missed the deadline.
that, Jackson failed to sign his petition, much less respond
to Question 18, which required that he explain why §
2244(d)(1)'s one-year limit did not bar his petition.
Id. at 13-15. The Clerk is therefore DIRECTED to
serve Jackson with a copy of his signature page, and he must
return it to this Court (place it in his prison's mail
system) within 14 days of the date this ruling is served upon
him, or risk dismissal on non-prosecution
grounds. But even if the Court accepts his §
2254 petition as filed on December 12, 2016 (or a few days
before that, if he claims he placed it in his prison's
mail earlier), it would still be time-barred and thus must be
DISMISSED WITH PREJUDICE.
Jackson moves for a 90-day extension of time to respond to
the State's Motion to Dismiss. Doc. 7. He claims mental
and law-library access impediments. Id. The Court
DENIES the motion (doc. 7) but extends from 14 to 30 days the
date on which he may file an Fed.R.Civ.P. 72(b)(2) Objection
to this Report and Recommendation. This legal issue is simple
enough, and it is conspicuous that Jackson failed to answer
Question 18 of the § 2254 form (the Court will give him
the benefit of the doubt and assume that his signature
omission was just an oversight). That extension will be
rescinded, and the Court will advise dismissal on
non-prosecution grounds, if Jackson fails to timely return
his executed signature page.
it is plain that unless Jackson responds with a knockout
punch, he has raised no substantial claim of deprivation of a
constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R.
App. P. 22(b); 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."). 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 thirty 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, and if the Court has not
granted an additional extension or otherwise paused this
case, 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
recommendations 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. 3-11 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
REPORTED AND RECOMMENDED.
 The Court encourages the Attorney
General of Georgia to abandon the anachronistic practice of
filing "announcement motions" with briefs.
See doc. 5 ("Motion To Dismiss Petition As
Untimely, " referring the Court to the motion's
legal basis in a second document, doc. 5-1, the State's
brief). A simple "Motion To Dismiss" that also
contains the State's brief (hence, a "motion/brief)
will do, sparing both the State and this Court the extra
paperwork labor and file space. See L.R. 7.1(b)