United States District Court, N.D. Georgia, Atlanta Division
CORPUS 28 U.S.C. § 2241
FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE
Darren Petty, who is currently on probation, has filed this
28 U.S.C. § 2241 petition 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.
January 21, 2014, petitioner entered a non-negotiated
Alford 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
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.
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].
§ 2254 petition is subject to a statutory one-year
limitation period, which runs from the latest of the
(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,  when the time for filing a direct