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Petty v. Dozier

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

November 2, 2017

DARREN PETTY, Petitioner,
v.
GREGORY C. DOZIER, Commissioner of the Georgia Department of Corrections, Respondent,

          FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. PROCEDURAL HISTORY

         On April 14, 2011, petitioner entered an Alford[1] 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.].

         Then, 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).

         On 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].

         Petitioner filed this § 2254 petition on July 19, 2017.[2] [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].

         II. DISCUSSION

         A § 2254 petition is subject to a statutory one-year limitation period, which runs from the latest of the following:

(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 ...


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