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Williams v. Tatum

United States District Court, N.D. Georgia, Atlanta Division

May 1, 2017

FLOYD W. WILLIAMS, II, Petitioner,
v.
WARDEN CLAY TATUM, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge J. Clay Fuller's Final Report and Recommendation [17] (“R&R”), recommending that Respondent Warden Clay Tatum's (“Respondent”) Motion to Dismiss Petition as Untimely [11] (“Motion to Dismiss”) be granted, that Petitioner Floyd W. Williams, II's (“Petitioner”) Application for Habeas Corpus Under § 28 U.S.C. 2254 [1] (“Federal Habeas Petition”) be dismissed as time-barred, and that a certificate of appealability be denied. Also before the Court are Petitioner's Objections [19] to the R&R.

         I. BACKGROUND

         On August 26, 2011, in the Superior Court of Clayton County, Petitioner pleaded guilty to two counts of murder, one count of residential burglary, one count of possession of a firearm by a felon, and one count of aggravated assault. ([12.1] at 1). Petitioner was sentenced to life in prison, and did not file a direct appeal. ([12.1] at 1-2). Petitioner claims that, on December 13, 2011, he filed, in the Superior Court of Clayton County, a “motion for sentence modification, ” which was denied on December 14, 2011. ([1] at 3; [11.1] at 1; [19] at 2).[1]

         On February 12, 2013, Petitioner filed his state habeas petition, which was denied on April 16, 2015. ([12.2]; [12.3]). On September 8, 2015, the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal. ([12.4]; [11.1] at 1). On September 6, 2016, almost one year later, Petitioner filed his Federal Habeas Petition. On October 20, 2016, Respondent filed his Motion to Dismiss, arguing that Petitioner's Federal Habeas Petition was time-barred. On February 28, 2017, the Magistrate Judge issued his R&R, recommending that Respondent's Motion to Dismiss be granted. On March 9, 2017, Petitioner filed his Objections to the R&R.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). In view of Petitioner's Objections, the Court conducts a de novo review of the record.

         B. Analysis

         1. Whether Petitioner's Federal Habeas Petition is Untimely

         Section 2254 motions are subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The limitations period generally runs from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A).[2] If the petitioner does not file a direct appeal, the judgment of conviction becomes final when the time to file an appeal expires. 28 U.S.C. § 2244(d)(1)(A). The one-year statute of limitations is subject to equitable tolling if the 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.” Lugo v. Sec'y, Florida Dep't of Corr., 750 F.3d 1198, 1207 (11th Cir. 2014). “To establish diligence, . . . [petitioner] must present evidence showing reasonable efforts to timely file his action.” Dodd v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004). “[T]he burden of proving circumstances that justify the application of the equitable tolling doctrine rests squarely on the petitioner, ” and “the allegations supporting equitable tolling must be specific and not conclusory.” Lugo, 750 F.3d at 1209. “[D]istrict courts are not required to mine the record, prospecting for facts that the habeas petitioner overlooked and could have, but did not, bring to the surface.” Id. The one-year statute of limitations also may be overcome by a showing of actual innocence. The petitioner, to trigger this exception, must “present[] evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 1936 (2013).

         Under Georgia law, Petitioner was required to file his direct appeal, if any, “within 30 days after entry of the appealable decision or judgment complained of.” O.C.G.A. § 5-6-38(a). Because Petitioner did not file an appeal, his judgment of conviction became final, and the limitations period began, on September 27, 2011, thirty days after judgment was entered on August 26, 2011. Petitioner filed his state habeas petition on February 12, 2013, more than a year later. An additional 363 days elapsed between the date on which the Georgia Supreme Court denied Petitioner's application for a probable cause certificate (September 8, 2015) and the date on which he filed his Federal Habeas Petition (September 6, 2016). Petitioner has not established actual innocence or equitable tolling, and his Federal Habeas Petition is required to be dismissed as untimely.[3]

         2. Certificate of Appealability

         A federal habeas “applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Fed. R. App. P. 22(b)(1). “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rules Governing Section 2254 Cases in the United States District Courts, Rule 11(a). A court may issue a certificate of appealability (“COA”) “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a ...


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