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Petty v. Dozier

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

February 9, 2018

DARREN PETTY, Petitioner,
v.
GREGORY DOZIER; and GA DEPT CORRECTION, Respondents,

         HABEAS CORPUS 28 U.S.C. § 2241

          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. § 2241 petition[1] to challenge his January 21, 2014, convictions in the Superior Court of Gwinnett County. This matter is currently before the Court on the petition, [Doc. 1], respondent's motion to dismiss petition as untimely, [Doc. 8], and petitioner's response, [Doc. 11]. For the reasons that follow, it is RECOMMENDED that respondent's motion to dismiss, [Doc. 8], be GRANTED and that this action be DISMISSED as time barred.

         I. PROCEDURAL HISTORY

         On January 21, 2014, petitioner entered a non-negotiated Alford[2] plea to two counts of theft by receiving stolen property and one count of theft by taking, and the Superior Court of Gwinnett County imposed a total sentence of five years of probation. [Doc. 9-2]. Petitioner timely filed a motion to withdraw his guilty plea, [Doc. 9-3], which the trial court denied without a hearing, [Doc. 9-5]. Petitioner appealed, and the Georgia Court of Appeals remanded the case to the trial court to hold a hearing on petitioner's motion to withdraw his guilty plea. [Doc. 9-7]. The trial court held a hearing on March 25, 2015, and denied petitioner's motion to withdraw his guilty plea in a written order entered on April 13, 2015. [Doc. 9-8]. Petitioner filed a pro se application for a discretionary appeal, although such an application was not required, and the Georgia Court of Appeals entered an order on May 19, 2015, granting petitioner's application and directing him to file a notice of appeal within ten days. [Docs. 9-9; 9-10]. Petitioner never filed a notice of appeal as directed.

         On January 14, 2016, petitioner filed a pro se habeas corpus petition in the Superior Court of Gwinnett County. [Doc. 9-11]. After a March 18, 2016, evidentiary hearing, the state habeas court denied the petition in a written order entered on July 11, 2016. [Doc. 9-12]. On August 14, 2017, the Georgia Supreme Court dismissed petitioner's appeal because he had failed to file a notice of appeal within thirty days of the order denying his state habeas petition. [Doc. 9-13].

         Petitioner filed this federal habeas petition on October 26, 2017. [Doc. 1]. As grounds for relief, petitioner argues that he received ineffective assistance of appellate counsel and that an officer committed perjury. [Id. at 6-7]. Respondent moves to dismiss the petition as untimely. [Doc. 8-1 at 3-9]. Petitioner responds, in pertinent part, that he is entitled to statutory tolling through August 14, 2017, when the Georgia Supreme Court dismissed his appeal from the denial of habeas relief. [Doc. 11 at 3-4].

         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 May 29, 2015, [3] when the time for filing a direct appeal ...


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