United States District Court, N.D. Georgia, Atlanta Division
FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE
Darren Petty, who is currently on probation, has filed this
28 U.S.C. § 2254 petition to challenge his April 14,
2011, convictions in the Superior Court of DeKalb County.
This matter is currently before the Court on the petition,
[Doc. 1], and respondent's motion to dismiss the petition
as untimely, [Doc. 9.] Because petitioner has not responded
to the motion to dismiss, it is deemed unopposed. See LR
7.1B, NDGa. For the reasons that follow, it is RECOMMENDED
that respondent's motion to dismiss, [Doc. 9], be GRANTED
and that this action be DISMISSED as time barred.
April 14, 2011, petitioner entered an
Alford plea to four counts of theft by receiving
stolen property, and the Superior Court of DeKalb County
imposed a total sentence of fifteen years on probation. [Doc.
10-2]. Petitioner did not then file a notice of appeal, but
more than two years and nine months later on January 14,
2014, he “purportedly filed a motion to withdraw his
plea and vacate his sentence.” Petty v. State,
No. A14D0459 (Ga.Ct.App. Aug. 8, 2014). [Doc. 10-3].
Petitioner subsequently filed an application for a
discretionary appeal, which the Georgia Court of Appeals
dismissed because he did not include a copy of the order he
sought to appeal. [Id.].
on June 30, 2014, more than three years after his sentence
was entered, petitioner filed a notice of appeal from his
sentence, which the Georgia Court of Appeals dismissed as
untimely. Petty v. State, No. A15A0073 (Ga.Ct.App.
Sept. 10, 2014). [Doc. 10-4]. Petitioner then filed a second
notice of appeal that also was dismissed as untimely.
Petty v. State, No. A15A0616 (Ga.Ct.App. Dec. 16,
2014).[Doc. 10-5]. The Georgia Supreme Court denied
certiorari on April 20, 2015. Petty v. State, No.
S15C0674 (Ga. Apr. 20, 2015). The Georgia Supreme Court
dismissed a second certiorari petition as untimely on April
17, 2017, and denied reconsideration on May 15, 2017.
Petty v. State, No. S17C0408 (Ga. Apr. 17, 2017).
August 29, 2014, petitioner filed a pro se habeas
corpus petition in the Superior Court of DeKalb County. [Doc.
10-6]. On July 21, 2015, the state habeas court dismissed the
petition without prejudice because petitioner had not served
the respondents as ordered by the court. [Doc. 1 at 15]. On
that same day, petitioner filed a second pro se
habeas corpus petition, [Doc. 10-7], which the state habeas
court dismissed as untimely, [Doc. 10-8]. The Georgia Supreme
Court dismissed petitioner's application for a
certificate of probable cause to appeal because he had not
timely filed a notice of appeal in the Superior Court of
DeKalb County. [Doc. 1 at 17].
filed this § 2254 petition on July 19,
2017. [Doc. 1 at 14]. As grounds for relief,
petitioner asserts that: (1) Officer Lewis gave false
testimony in support of the warrant; and (2) the prosecuting
attorney failed to “act or help protect
[petitioner's] rights.” [Id. at 5-7].
Respondent moves to dismiss the petition as untimely. [Doc.
9-1 at 3-8].
§ 2254 petition is subject to a statutory one-year
limitation period, which runs from the latest of the
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1). In this case, there is no claim
that the circumstances set forth in subparagraphs (B) through
(D) above apply. Thus, the one-year limitations period began
to run on Monday, May 16, 2011, since petitioner did not file
a notice of appeal within 30 days after entering his
Alford plea on April 14, 2011. See O. C. G.
A. § 5-6-38(a) (notice of appeal must be filed within
thirty days after entry of judgment); Bridges v.
Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (holding
that prisoner's conviction became final under §
2244(d)(1)(A) when the time for filing a direct appeal
expired); Ga.Ct.App. R. 3 (“When a filing deadline
falls on a Saturday, . . . the deadline is extended to the
next business day.”). Petitioner's unsuccessful
attempts to directly appeal his sentence years after it was
entered does not affect this calculation. Cf. Jimenez v.
Quarterman, 555 U.S. 113, 121 (2009) (holding that
“where a state court grants a
criminal defendant the right to file an out-of-time direct
appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his
judgment is not yet ‘final' for purposes of §
2244(d)(1)(A).”) (emphasis added); see also Davis
v. Crews, No. 4:12cv581-WS/CAS, 2013 WL ...