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Drake v. Holt

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

May 5, 2017

THEODORE DRAKE, Petitioner,
v.
AHMED HOLT, Respondent.

          OPINION AND ORDER

          WILLIAM S. DTJTFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge Catherine M. Salinas' Second Final Report and Recommendation [18] (“Second R&R”), recommending that Respondent Ahmed Holt's (“Respondent”) Renewed Motion to Dismiss Petition as Untimely [14] (“Second Motion to Dismiss”) be granted, that Petitioner Theodore Drake's (“Petitioner”) Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [1] (“Federal Habeas Petition”) be dismissed, and that a certificate of appealability be denied. Also before the Court are Petitioner's Objections [20] to the Second R&R.

         I. BACKGROUND

         In March 2007, a DeKalb County grand jury indicted Petitioner on three counts of aggravated stalking, one count of aggravated assault, one count of kidnapping with bodily injury, one count of burglary, and one count of criminal damage to property in the second degree. ([8.4] at 1-2). The indictment charged Petitioner with committing all of these offenses against Ciara Howell. ([8.4] at 1-2). On May 28, 2010, after a four-day trial, a DeKalb County jury convicted Petitioner of one count of simple battery, in violation of O.C.G.A. § 16-5-23(a), and three counts of aggravated stalking, in violation of O.C.G.A. § 16-5-91(a). ([1]; [8.1] at 1). Petitioner was found not guilty on the remaining charges. ([8.4] at 2). The trial court sentenced Petitioner to fourteen years in prison. ([1] at 1). Petitioner appealed, “contending that the trial court allowed the victim to make impermissible comments about his character in the presence of the jury.” ([8.1] at 1). On April 4, 2012, the Georgia Court of Appeals affirmed the trial court's judgment. ([8.1]). On January 7, 2013, the Georgia Supreme Court denied Petitioner's petition for certiorari. ([8.2]). Petitioner did not seek certiorari review in the United States Supreme Court. ([7.1] at 4).

         More than a year later, on March 6, 2014, Petitioner filed a state habeas corpus petition challenging his convictions, asserting three claims for ineffective assistance of appellate counsel. ([8.3]). On May 5, 2015, after holding an evidentiary hearing, the state habeas court denied Petitioner's petition. ([8.4]). On September 8, 2015, the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal. ([8.5]). On October 5, 2015, the Georgia Supreme Court transmitted the remititur to the Superior Court of Gwinnett County, marking the end of Petitioner's state habeas proceedings. ([8.6]).

         On April 20, 2016, Petitioner filed his Federal Habeas Petition, asserting eight claims for ineffective assistance of trial and appellate counsel. ([1] at 5-6). On June 13, 2016, Respondent filed his first Motion to Dismiss Petition as Untimely [7] (“First Motion to Dismiss”), arguing that the Federal Habeas Petition should be dismissed as untimely. ([7.1]). On September 20, 2016, Petitioner filed his Reply in Opposition to Respondent's Motion to Dismiss as Untimely [9]. Petitioner did not dispute Respondent's assertion that his Federal Habeas Petition was filed outside the one year period ordinarily required by 28 U.S.C. § 2244(d), but argued that he is “factually innocent” and thus qualifies for an equitable exception to the one-year limitations period imposed by 28 U.S.C. § 2244(d). ([9] at 1-3). Petitioner claimed “[c]redible testimonial evidence, which was not previously available, exists that would establish [his] claim.” ([9] at 3). Petitioner did not explain what this evidence was and did not submit any evidence with his brief.

         On September 23, 2016, the Magistrate Judge issued her first Final Report and Recommendation [10] (“First R&R”), recommending that Respondent's First Motion to Dismiss Petition be granted and that Petitioner's Federal Habeas Petition be dismissed as untimely. The Magistrate Judge found that Petitioner did not show he qualified for the “actual innocence” exception to the one year limitations period because he failed to “submit[] any affidavits that identify new witnesses, summarize the new facts to which they would testify, and explain why those witnesses and their testimony were previously unavailable.” (First R&R at 2). On October 3, 2016, Petitioner filed his Objections [12] to the First R&R, attaching a declaration signed by his sister, Andria Thomas, and three declarations signed by long-time friends, Keishuna Turner, Tawanda Martin and Mike Webster. These individuals did not testify at Petitioner's trial or at his subsequent proceedings, including because Petitioner's attorney declined to call them as witnesses. The declarations describe Petitioner's relationship with Ciara Howell and assert that she often initiated contact with Petitioner. Petitioner alleges that the declarations “paint a picture of a woman who was excessively jealous of Petitioner's various relationships to everyone and everything-who found a way to use the courts to exercise control over Petitioner through a series of false allegations.” ([12] at 3).

         On December 5, 2016, the Court, in light of Petitioner's new evidence, denied Respondent's First Motion to Dismiss as moot, directed Respondent to file a second motion to dismiss, and re-referred the case to the Magistrate Judge. ([13]). On December 30, 2016, Respondent filed his Second Motion to Dismiss, arguing that Petitioner's Federal Habeas Petition is untimely and that Petitioner does not qualify for the “actual innocence” exception to the one year limitations period. Petitioner did not file a response. See LR 7.1(B), NDGa (“Failure to file a response shall indicate that there is no opposition to the motion.”). On April 17, 2017, the Magistrate Judge issued her Second R&R, recommending that Respondent's Second Motion to Dismiss be granted and that Petitioner's Federal Habeas Petition be dismissed as untimely, because Petitioner “filed his petition after the one-year limitation period had expired, has not raised a tenable actual-innocence gateway plea, and is not entitled to an ‘equitable exception' to the limitation period.” (Second R&R at 7-8). On April 27, 2017, Petitioner filed his Objections to the Second 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).

         Petitioner's Objections assert that his trial, appellate and state habeas counsel were ineffective for failing to introduce the testimonies contained in the four declarations now before the Court. ([20] at 1-4). Petitioner did not raise this argument on direct appeal, in his state habeas petition, in his Federal Habeas Petition, or in any other filing in this Court, even after the Court granted Petitioner a second opportunity to develop his actual innocence claim after the First R&R was issued, and even though the Court warned Petitioner “that he must submit all evidence in support of his actual innocence claim before the Magistrate Judge issues a further report and recommendation.” ([13] at 5-6). The Court made it clear that it “will not consider additional evidence raised after that date.” ([13] at 6). The Court declines to consider Petitioner's unexhausted and untimely argument that his counsel were ineffective for failing to introduce the evidence contained in the four declarations. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (“[A] district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.”); see also Shultz v. Sec'y of U.S. Air Force, 522 F. App'x 503, 506 (11th Cir. 2013) (“[T]o require a district court to consider evidence not previously presented to the magistrate judge would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court.”).[1]

         Because Petitioner does not “specify with particularity” any portion of the Second R&R to which he objects, or the basis for his objections, the Court conducts a plain error review of the record. ([19] at 1); see Macort v. Prem, Inc., 208 F. App'x 781, 783 (11th Cir. 2006) (“In order to challenge the findings and recommendations of the magistrate judge, a party must file written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. . . . It is critical that the objection be sufficiently specific and not a general objection to the report.”); Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (stating that plain error review is ...


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