United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
to life imprisonment in 1984 for robbery, rape, and assault,
Milton Mitchell petitions this Court for 28 U.S.C. §
2254 relief. Doc. 1. Preliminary review under Rule 4 of the
Rules Governing Section 2254 Cases shows that his petition
must be dismissed.
it is unclear precisely on what date he was sentenced,
Mitchell began serving his sentence February 6, 1984. See
http://www.dcor.state.ga.us/GDC/Offender/Query. He did
not appeal, and he did not seek state habeas relief until
“about ten years ago” (doc. 1 at 8) -- relief
which was summarily denied. See doc. 1 at 3 & 8.
must have been sentenced sometime around the beginning of his
incarceration on February 6, 1984. Because he was sentenced
prior to the passing of the Anti-Terrorism and Effective
Death Penalty Act (AEDPA) (which was effective as of April
24, 1996), his one-year deadline didn't fall a year after
sentencing. 28 U.S.C. § 2244(d)(2) (requiring petitions
to be filed within one year after their convictions became
final). Instead, he was required to file any habeas petition
by April 24, 1997 -- “one year from the date of
enactment” of the AEDPA. Helton v. Sec'y for
Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001)
(citing Wilcox v. Fla. Dep't of Corr., 158 F.3d
1209, 1211 (11th Cir. 1998) (prisoners whose convictions
became final before AEDPA's effective date must file
their petition “within a reasonable time -- within one
year from AEDPA's effective date.”)). His state
habeas petition was filed “about ten years ago”
-- decades too late. And since that the one year clock has run
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, 2013).
Milton Mitchell's § 2254 petition is untimely and
should be DISMISSED. Applying the Certificate of
Appealability (COA) standards set forth in Brown v.
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage
of the litigation, so no COA should issue either. 28 U.S.C.
§ 2253(c)(1); 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.”) (emphasis added). 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 14 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, 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. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir.
2016); Mitchel v. U.S., 612 F.
App'x 542, 545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 Despite that, his untimely petition
“may still be timely if the petitioner is entitled to
equitable tolling.” Aureoles v. Sec'y,
D.O.C., 609 F. App'x 623, 624 (11th Cir. 2015)
(citing Damren v. Florida, 776 F.3d 816, 821 (11th
Cir. 2015)). “A petitioner is entitled to equitable
tolling if he can demonstrate that: (1) he has pursued his
rights diligently; and (2) an extraordinary circumstance
prevented him from filing a timely petition.”
Id.; Holland v. Florida, 560 U.S. 631, 649
Mitchell, however, presents nothing to indicate an
extraordinary circumstance stood in the way of timely filing.
He explains that the “newly discovered evidence”
that “there are no minutes of the grand jury
proceedings, maken [sic] of the indic[t]ment in open
court and the oath given to the grand jury required by law
code and due process” -- rendering the entire
proceedings “illegal” and
“fraud[ulent]” --excuses the thirty year delay in
seeking federal habeas relief. Doc. 1 at 9. But (whichever of
his six convictions he contends were so deficient) that
information has been available at least since the indictments
for his various crimes were issued in 1982 and 1983. There is
no indication petitioner has diligently pursued his rights or
that some “extraordinary ...