United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DTJTFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge Catherine M.
Salinas' Second Final Report and Recommendation 
(“Second R&R”), recommending that Respondent
Ahmed Holt's (“Respondent”) Renewed Motion to
Dismiss Petition as Untimely  (“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 
(“Federal Habeas Petition”) be dismissed, and
that a certificate of appealability be denied. Also before
the Court are Petitioner's Objections  to the Second
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). (; [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. ( 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).
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]).
April 20, 2016, Petitioner filed his Federal Habeas Petition,
asserting eight claims for ineffective assistance of trial
and appellate counsel. ( at 5-6). On June 13, 2016,
Respondent filed his first Motion to Dismiss Petition as
Untimely  (“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 . 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). ( at 1-3). Petitioner claimed
“[c]redible testimonial evidence, which was not
previously available, exists that would establish [his]
claim.” ( at 3). Petitioner did not explain what
this evidence was and did not submit any evidence with his
September 23, 2016, the Magistrate Judge issued her first
Final Report and Recommendation  (“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  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.” ( at 3).
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. (). 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.
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).
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. ( 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.” ( at
5-6). The Court made it clear that it “will not
consider additional evidence raised after that date.”
( 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.”).
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. ( 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 ...