United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Respondent Gregory C.
Dozier's (“Respondent”) Motion to Dismiss as
Untimely  and Magistrate Judge Russell G. Vineyard's
Final Report and Recommendation  (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  (the
“Petition”) as time-barred, and deny the
Certificate of Appealability. Also before the Court are
Petitioner's Objections to the Final R&R .
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]).
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.
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).
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. ( 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. (
filed the Petition on July 19, 2017. ( 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).
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  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.
(). The Magistrate Judge reasoned that there was no basis
to toll Section 2254's one-year limitations period.
(Id. at 4).
November 20, 2017, Petitioner filed his “Motion of
Filing Objection and Motion to Grant Certificate of
Appealability” (the “Objections”). ().
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.” ( 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).
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).
Standard of Review of a Magistrate ...