United States District Court, S.D. Georgia, Dublin Division
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation ("R&R"), to which objections
have been filed. (Doc. no. 25.) Although nothing in
Petitioner's objections undermines the Magistrate
Judge's recommendation, the Court will briefly address
objections, Petitioner raises new arguments against the
Magistrate Judge's analysis of: (1) the "in
custody" requirement of 28 U.S.C. § 2254; (2) the
equitable tolling exception to the one-year statute of
limitations under AEDPA; and (3) the "actual
innocence" exception to the one-year statute of
limitations under AEDPA. (Doc. no. 25.) While courts have the
discretion to consider novel evidence, factual claims, and
legal argument raised for the first time in an objection to
an R&R, they are under no obligation to do so. Frone
v. JP Morgan Chase & Co., 695 Fed.Appx. 468, 472
(11th Cir. 2017) (concluding district judge has broad
discretion in considering argument not presented to
magistrate judge); Williams v. McNeil, 557 F.3d
1287, 1292 (11th Cir. 2009) (same). The Court chooses not to
consider Petitioner's new factual claims here. However,
even if the Court were to consider Petitioner's new
arguments, they would not change the Magistrate Judge's
well-reasoned analysis and conclusion.
advances a new argument in his objections regarding the
"in custody" requirement of 28 U.S.C § 2254.
In the current petition, Petitioner challenges his 2013
conviction for aggravated cruelty to animals. (See
doc. no. 1.) In his objections, Petitioner argues for the
first time he satisfies the "in custody"
requirement because he is currently serving a sentence for a
2016 felony conviction that is purportedly predicated on his
2013 conviction. (Doc. no. 25, p. 14.)
Lackawanna Cty. Dist. Att'y v. Coss, the Court
held a petitioner was considered "in custody" for
the purpose of a § 2254 petition even though the
petitioner was no longer serving the challenged sentence,
where his petition "can be (and has been) construed as
'asserting a challenge to the [current] senten[ce] as
enhanced by the allegedly invalid prior .. .
conviction.'" (quoting Maleng v. Cook, 490
U.S. 488, 493 (1989)). 532 U.S. 394, 401-02 (2001). Recently,
however, the Eleventh Circuit explained a petitioner does not
meet the "in custody" requirement under
Lackawanna if (1) his challenge to the enhanced
sentence is nothing more than a claim that the prior
conviction causing the enhancement is invalid; and (2) he is
no longer serving a sentence on the expired conviction.
Hamm v. Comm'r. Ala. Dept. of Corr., 620
Fed.Appx. 752, 759 (11th Cir. 2015) (citations omitted).
makes no mention of the 2016 conviction in his § 2254
petition. Instead, he only seeks to challenge his 2013
conviction for which he is admittedly no longer in custody.
(Doc. nos. 14, 19.) Even in his objections, he merely
explains that his 2016 conviction is predicated on the 2013
conviction. Not once does he attack the validity of the 2016
conviction itself. (Doc. no. 25, p. 14.) Accordingly,
Petitioner does not meet the "in custody"
requirement as recognized in Lackawanna.
Lackawanna, 532 U.S. at 401-02.
Petitioner were "in custody" under
Lackawanna, he would not be able to challenge his
2013 conviction because it is no longer open to direct or
collateral attack in its own right. As explained in the
Report and Recommendation, Petitioner filed the current
§ 2254 petition outside of the one-year AEDPA statute of
limitations, and the 2013 conviction he challenges is no
longer open to direct or collateral attack.
argues he is entitled to equitable tolling because he can
show "cause and prejudice" based on his trial
counsel's ineffective assistance of counsel and the
invalidity of the indictment. (Doc. no. 25, pp. 5-7.)
Petitioner, however, does not state the proper test for
equitable tolling. To be entitled to equitable tolling under
AEDPA, a petitioner must show "'(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.'" Holland v. Florida, 560
U.S. 631, 649 (2010) quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).
has not made the required showing of diligence or
extraordinary circumstances. Petitioner claims, again for the
first time in his objections, he hired his postconviction
counsel on June 4, 2014, and counsel promised to "file
his petition timely." (Doc. no. 25, p. 2-3.) When
Petitioner asked his counsel about the late filing of the
petition, counsel purportedly told him the nature of the
claims would "except any procedural bar caused by his
failure to file timely." (Id. at 3.) Petitioner
does not indicate what type of "petition" he
instructed his counsel to file in June 2014. Furthermore,
Petitioner states in his objections he "did not know of
the law in 28 U.S.C. § 2241 and § 2245 [sic]"
until May 2016. (Doc. no. 25, p. 15.) Thus, it seems highly
unlikely Petitioner told his counsel to file a federal habeas
petition of which he had no knowledge in June 2014.
counsel's purported actions do not rise to the level of
extraordinary circumstances as required for equitable
tolling. "[A] garden variety claim of excusable neglect.
. . such as a simple miscalculation that leads a lawyer to
miss a filing deadline . . . does not warrant equitable
tolling." Holland v. Florida, 560 U.S. 631,
651-52 (2010) (quotations omitted). Extraordinary
circumstances in this context are found where counsel's
"abandonment" of the client is "'evidenced
by counsel's near-total failure to communicate with
petitioner or to respond to petitioner's many inquiries
and requests . . . .'" Maples v. Thomas,
565 U.S. 266, 282 (2012) (quoting Holland, 560 U.S.
at 659). No such showing can be made here.
post-conviction counsel represented Petitioner diligently
from June 2014 to August 2017, when Petitioner summarily
fired counsel in a notice to the court. (Doc. no. 26.)
Counsel regularly filed motions, petitions, and appeals on
Petitioner's behalf, including a state motion to correct
void and illegal sentence on July 21, 2014, a state habeas
petition on October 15, 2014, and the present federal habeas
petition on August 19, 2016. Thus, it is clear
Petitioner's post-conviction counsel never
"abandoned" him in a manner deserving of equitable
tolling of the limitations period. Maples, 565 U.S.
finally argues he is entitled to equitable tolling under the
"actual innocence" exception to the AEDPA
limitations because the indictment failed to allege the
essential elements of the offense for which he was convicted
in 2013. To satisfy the actual innocence exception,
Petitioner must be able "(1) to present 'new
reliable evidence . . . that was not presented at trial,
' and (2) to show 'that it
is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt' in
light of the new evidence." Rozzelle v. Sec'y.
Fla. Dep't of Corr., 672 F.3d 1000, 1011 (11th Cir.
2012) (emphasis added) (citations omitted), cert,
denied, 133 S.Ct. 351 (2012). As the Magistrate Judge
noted, Petitioner offers no new evidence supporting his claim
of actual innocence. (Doc. no. 20, p. 8.) Petitioner has, at
most, provided "new interpretations of existing
evidence, " which is "not ... a sufficient showing
of actual innocence to overcome the procedural default."
Claritt v. Kemp, 336 Fed.Appx. 869, 871 (11th Cir.
2009). Thus, Petitioner is not entitled to equitable tolling
based on a claim of actual innocence.
the Court OVERRULES Petitioner's
objections, ADOPTS the Report and
Recommendation of the Magistrate Judge as its opinion,
GRANTS Respondent's motion to dismiss,
and DISMISSES this petition filed pursuant
to 28 U.S.C. § 2254 for lack of jurisdiction.
prisoner seeking relief under § 2254 must obtain a
certificate of appealability ("COA") before
appealing the denial of his application for a writ of habeas
corpus. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a) to the Rules Governing Section
2254 Proceedings. This Court should grant a COA only if the
prisoner makes a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). For
the reasons set forth in the Report and Recommendation, and
in consideration of the standards enunciated in Slack v.
McDanieh 529 U.S. 473, 482-84 (2000), Petitioner has
failed to make the requisite showing. Accordingly, the Court
DENIES a COA in this case. Moreover, because
there are no non-frivolous issues to raise on appeal, an
appeal would not be taken in good faith, and Petitioner is
not entitled to appeal in forma pauperis. See 28
U.S.C. § 1915(a)(3).
Petitioner filed a notice on September 26, 2017, seeking to
dismiss his counsel and proceed pro se. (Doc. no.
26.) Petitioner's counsel has not filed a motion to
withdraw from the case. Thus, out of an abundance of caution,
the Court DIRECTS the ...