United States District Court, S.D. Georgia, Statesboro Division
CARLTON J. WALKER Petitioner,
KEVIN SPRAYBERRY, Respondent.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
Carlton J. Walker (“Walker”), who is currently
incarcerated at Hays State Prison in Trion, Georgia, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 challenging his conviction and sentence obtained
in the Superior Court of Emanuel County, Georgia. (Doc. 1.)
Respondent filed an Answer-Response and a Motion to Dismiss.
(Docs. 11, 12.) Walker filed Responses to the Motion to
Dismiss. (Docs. 15, 16.) For the reasons which follow, I
RECOMMEND the Court GRANT
Respondent's Motion, DISMISS
Walker's Petition, DIRECT the Clerk of
Court to enter the appropriate judgment of dismissal and
CLOSE this case, and DENY
Walker in forma pauperis status on appeal and a
Certificate of Appealability.
20, 2012, Walker pleaded guilty to two counts of armed
robbery. (Doc. 10-1, pp. 4-5; Doc. 13-4, p. 1.) Walker was
sentenced to 17 years to serve without parole, to run
concurrently with any active sentence that he was currently
serving. (Doc. 10-1, p. 4; Doc. 13-4, p. 1.) Walker did not
pursue a direct appeal. Instead, on December 29, 2014, Walker
executed an out-of-time Motion to Modify/Reduce Sentence in
the Emanuel County Superior Court. (Doc. 13-3.) The Emanuel
County Superior Court denied this Motion on February 17,
2015, finding it both untimely and without merit. (Doc.
13-4.) On April 25, 2016, Walker filed a Motion to
Correct/Void Sentence in the Emanuel County Superior Court.
(Doc. 13-5.) Finding Walker's sentence consistent with
Georgia law, the Emanuel County Superior Court also denied
this Motion on June 12, 2017. (Doc. 16-1, pp. 1-2.)
filed an application for writ of habeas corpus in the
Superior Court of Chattooga County, Georgia, on May 13, 2016.
(Doc. 13-1.) The warden filed an answer on September 7, 2016.
(Doc. 13-2.) As of April 17, 2017, no evidentiary hearing had
been conducted. (Doc. 12-1, p. 1.) Walker executed this
Section 2254 Petition on January 26, 2017, and it was filed
in this Court on February 2, 2017. (Doc. 1.)
Petition, Walker alleges that his plea was involuntary
because he has a “mental health condition [that]
prevented petitioner from understanding the plea, ” the
Superior Court improperly sentenced him as a recidivist, and
his public defender rendered ineffective assistance by
“advising the petitioner to accept the Alford plea
[while] knowing the plea was incorrect and illegal.”
(Doc. 1, pp. 5-6.)
contends that Walker untimely filed his Section 2254 Petition
because he did not file it within one year of his Emanuel
County conviction being “final.” (Doc. 12-1, p.
2.) Respondent also argues that Walker did not properly
exhaust his state remedies before filing his Petition with
this Court. (Id. at pp. 5-7.) Walker filed Responses
arguing that his public defender refused to file a motion to
withdraw his guilty plea, and the Emanuel County Superior
Court incorrectly calculated his concurrent sentences. (Docs.
Whether Walker Timely Filed his Petition
petitioner seeking to file a federal habeas petition has one
year within which to file his petition. 28 U.S.C. §
2244(d)(1). The statute of limitations period shall run from
the latest of four possible dates:
(A) the date on which the judgment of conviction becomes
final by the conclusion of direct review or the expiration of
time for seeking such review;
(B) the date on which the impediment to filing an application
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 that 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