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Petty v. Dozier

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

December 7, 2017

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

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Respondent Gregory C. Dozier's (“Respondent”) Motion to Dismiss as Untimely [9] and Magistrate Judge Russell G. Vineyard's Final Report and Recommendation [11] (the “Final R&R”). The Final R&R recommends the Court grant Respondent's unopposed Motion to Dismiss, dismiss Darren Petty's (“Petitioner”) 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus [1] (the “Petition”) as time-barred, and deny the Certificate of Appealability. Also before the Court are Petitioner's Objections to the Final R&R [13].

         I. BACKGROUND

         A. Facts[1]

         Petitioner, who is currently on probation, has filed this Petition to challenge his April 14, 2011, convictions in the Superior Court of DeKalb County. On April 14, 2011, Petitioner entered a guilty plea under North Carolina v. Alford, 400 U.S. 25 (1970), to four counts of theft by receiving stolen property and received a concurrent sentence of fifteen years on probation for each count. ([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). ([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). ([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). ([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. ([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. ([1] at 15). On that same day, Petitioner filed a second pro se habeas corpus petition, [10.7], which the state habeas court dismissed as untimely, [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. ([1] at 17).

         Petitioner filed the Petition on July 19, 2017. ([1] at 14). As grounds for relief, Petitioner asserts that: (1) Officer K. B. 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).

         On September, 25, 2017, Respondent moved to dismiss the petition as untimely. ([9.1] at 3-8). Petitioner did not respond to Respondent's motion to dismiss. (See [11] at 1). On November 2, 2017, the Magistrate Judge issued his Final R&R, recommending the Court grant Respondent's unopposed Motion to Dismiss, dismiss this action as time-barred, and deny the Certificate of Appealability. ([11]). The Magistrate Judge reasoned that there was no basis to toll Section 2254's one-year limitations period. (Id. at 4).

         On November 20, 2017, Petitioner filed his “Motion of Filing Objection and Motion to Grant Certificate of Appealability” (the “Objections”). ([13]). In the Objections, Petitioner appears to assert that he did not respond to the motion to dismiss because of “mail box thefts and home burglary.” ([13] at 1). In objecting to dismissal, he argues that he was incarcerated during the statutory period and therefore “had no home or permanent address which prevented plaintiff who is not a [sic] attorney time not [sic] environment to study the law and seek or discover all legal remedies to correct perjury information of Officer Lewis.” (Id. at 1-2).

         Next, Petitioner argues that the statutory period should have been tolled by the “Post Conviction pending investigation” by the Dekalb County District Attorney's Office. For support, Petitioner includes a letter from the Public Integrity Unit of the District Attorney's Office, dated September 28, 2015, notifying Petitioner that there was sufficient information to initiate a preliminary investigation regarding Police Officer K. B. Lewis. (Id. at 4).

         II. DISCUSSION

         A. Standard of Review of a Magistrate ...


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