United States District Court, N.D. Georgia, Atlanta Division
LABARRION HARRIS, GDC ID# 1000689140, Case# 747289, Petitioner,
JAMES DEAL, Respondent.
CORPUS 28 U.S.C. § 2254
D. EVANS UNITED STATES DISTRICT JUDGE
action is before the Court on the Order and Final Report and
Recommendation of Magistrate Judge J. Clay Fuller
("R&R") (Doc. 15), recommending that
Respondent's motion (Doc. 11) to dismiss Petitioner's
habeas corpus petition as time-barred be granted. Petitioner
objects. (Doc. 18 ("Objs.")). He also has filed
Amendments to Objections (Doc. 19) and a Demand for Jury
Trial (Doc. 20).
reviewing a Magistrate Judge's R&R, the district
court "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). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district
court judge "may accept, reject, or modify, in whole or
in part, the findings and recommendations made by the
magistrate [judge], " 28 U.S.C. § 636(b)(1), and
"need only satisfy itself that there is no clear error
on the face of the record" in order to accept the
recommendation. Fed.R.Civ.P. 72, advisory committee note,
1983 Addition, Subdivision (b). In accordance with 28 U.S.C.
§ 636(b)(1) and Rule 72 of the Federal Rules of Civil
Procedure, the Court has conducted a de novo review
of those portions of the R&R to which Petitioner objects
and has reviewed the remainder of the R&R for plain
error. See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
R&R provides the following procedural history, to which
Petitioner does not object:
Petitioner entered his guilty plea on November 3, 2011. There
is no record that he filed a direct appeal. On June 25, 2013,
Petitioner filed a De Novo Out Of Time Appeal and a Motion To
Reduce/Modify Sentence. On July 10, 2013, the trial court
denied each motion. On September 22, 2014, in an unpublished
opinion, the Court of Appeals of Georgia denied
Petitioner's appeal from the denial of these motions.
Petitioner next filed a Motion To Vacate Void Sentence on
March 17, 2017, which the trial court denied on March 21,
2017. Petitioner then executed and filed his federal habeas
petition on June 23, 2017.
(R&R at 1-2 (citations omitted) (formatting altered)).
Petitioner's federal habeas claims are based on the
rather novel proposition that none of Georgia's criminal
statutes pass constitutional muster. (Id. at 2).
R&R rejects Petitioner's argument that the start of
the limitations period should be delayed during the
"many years" he needed to discover the factual
predicate for his claims, because "his claims are not
based on a newly discovered factual predicate, but rather on
Petitioner's idiosyncratic legal analysis of the Georgia
statutory scheme. Nothing about this statutory scheme
involves a fact affecting Petitioner's guilt or
innocence, and thus he may not rely on the date he discovered
this alleged factual predicate to trigger the limitations
period for his claims." (Id. at 4-5). The
R&R concludes, therefore, that Petitioner missed the
one-year cutoff of December 5, 2012 for filing either a
tolling state application for postconviction relief or a
federal habeas petition, and thus statutory tolling does not
apply here. (Id. at 6-7). The R&R also concludes
that equitable tolling is not available to Petitioner based
on his alleged ignorance of the law and that Petitioner may
not rely on his actual innocence to overcome the time bar
because he has not offered new reliable evidence of his
innocence. (Id. at 7-10). Thus, his "federal
habeas petition, due no later than December 5, 2012, but
filed on June 23, 2017, is untimely by more than four years
and six months." (Id. at 10).
objects that the state trial court lacked jurisdiction over
his alleged crimes because they are based on unconstitutional
Georgia criminal statutes, and that "jurisdiction can be
challenged at any time." (Objs. at 2-3). But a federal
district court may not address the merits of any claim raised
in a time-barred federal habeas petition, including a claim
challenging the jurisdiction of the state criminal court.
See Walker v. Alabama, 2:14cv982-WKW, 2015 U.S.
Dist. LEXIS 59932, at *8 n.5 (M.D. Ala. Apr. 2) ("Walker
is incorrect in arguing that the federal limitation period
does not apply to his § 2254 petition because he
presents what he says is a 'jurisdictional' claim
There is no exception to the limitation period in 28 U.S.C.
§ 2244(d) for such claims seeking to impugn the
jurisdiction of the state trial court."), adopted
by 2015 U.S. Dist. LEXIS 59629 (M.D. Ala. May 7, 2015).
also objects that there is no controversy established by
Respondent's motion to dismiss, presenting arguments that
are appropriate when offered by a defendant in a civil
action, not by a petitioner in a habeas action. (Objs. at
1-2, 4, 13). This objection is thus puzzling and ultimately
irrelevant. The timeliness of Petitioner's federal habeas
petition is the sole matter at issue here, and Respondent had
every right to raise it.
next objects that his petition must be considered on the
merits because the writ of habeas corpus cannot be suspended
except during rebellion or invasion (see Objs. at
5-6), but it is well-settled that the dismissal of a federal
habeas petition as time-barred does not violate the
Suspension Clause of the United States Constitution. See
Collazo v. United States, 190 Fed.Appx. 759, 761 n.5
(11th Cir. 2006) ("We have previously held that neither
the one-year limitations period for filing an initial habeas
corpus petition nor [the] restrictions on successive
petitions amounts to suspension of the writ." (citing
Wyzykowski v. Dep 't of Corr,, 226 F.3d 1213,
1217 (11th Cir. 2000))).
Petitioner objects to the R&R's conclusions regarding
the starting date for the limitations period, the
availability of statutory and equitable tolling and his right
to invoke the actual innocence exception to the habeas
time-bar - all based on the state trial court's alleged
lack of jurisdiction to convict and sentence him. (Objs. at
6-12). These objections are frivolous because
Petitioner's jurisdictional claims are frivolous, nor do
they warrant statutory or equitable tolling or the
application of the actual innocence exception. See, e.g.,
Walker v. Alabama, 2:14-CV-982-WKW, 2015 U.S. Dist.
LEXIS 72093, at *3 (M.D. Ala. June 4, 2015) ("A claim of
actual innocence is separate and apart from challenges
grounded upon legal or procedural insufficiencies. Because
the present motion is grounded entirely upon Mr. Walker's
challenge to the state-court's jurisdiction, his
arguments regarding actual innocence remain without merit and
the federal time-bar applies to the present petition."
(citing Bousley v. United States, 523 U.S. 614, 623
(1998) ("It is important to note in this regard that
'actual innocence' means factual innocence, not mere
Amendments, Petitioner argues that under FED. R. Cl V. P.
60(b)(4) there is no time bar for a federal habeas petition
that challenges a void judgment, and therefore his habeas
petition cannot be dismissed as untimely. (Doc. 19). This
argument fails. Petitioner misconstrues this Court's
jurisdiction, which does not extend to correcting state court
judgments, void or otherwise, under Rule 60(b). Petitioner
may only prevail in overturning his criminal ...