United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUPFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Quinton
Handspike's (“Petitioner”) Motion to Set
Aside Void Judgment Pursuant to Rule 60(b)(4)
2004, Petitioner was found guilty by a jury on two counts of
armed robbery, and sentenced to life imprisonment. ( at
1). On May 19, 2006, the Georgia Court of Appeals denied
Petitioner's appeal and affirmed his conviction.
Handspike v. State, 279 Ga.App. 496, 631 S.E.2d 730,
731 (2006). Petitioner did not seek certiorari in the Georgia
Supreme Court. ( at 2).
10, 2007, Petitioner filed a habeas corpus petition in the
Superior Court, which was denied on May 10, 2011. ([10.1] at
1; [10.4] at 1). On June 3, 2011, Petitioner filed an
application for a certificate of probable cause in the
Georgia Supreme Court, which was denied on September 9, 2013.
October 28, 2013, Petitioner filed his Petition pursuant to
28 U.S.C. § 2254. On January 22, 2014, Respondent filed an
Answer , asserting several defenses, including that the
Petition was untimely. On the same day, Respondent moved to
dismiss  the Petition as untimely, arguing that it was not
filed within the one (1) year limitations period set forth in
28 U.S.C. § 2244(d). Respondent certified that both the
Answer and the Motion to Dismiss were mailed to Petitioner.
On February 5, 2014, Respondent filed exhibits to his Motion
to Dismiss, and certified that the notice of filing of the
exhibits was mailed to Petitioner.
did not respond to the Motion to Dismiss. On April 25, 2014,
the Magistrate Judge issued his Final Report and
Recommendation , recommending that the Petition be denied
as untimely, because the one-year limitations period for
Petitioner to file a § 2254 petition expired on May 30,
2007. ( at 3-4). Petitioner's time for filing did not
toll because he did not seek state collateral review until
July 10, 2007, after his one-year limitations period had
expired. ( at 3). The Magistrate Judge also found that
Petitioner's failure to respond to the Motion to Dismiss
precluded him from arguing that he was entitled to equitable
tolling. ( at 4). Having found that the untimeliness of
the Petition was not debatable, the Magistrate Judge
recommended that a COA not be issued. ( at 4-5).
6, 2014, Petitioner objected  to the R&R, asserted
that he did not receive Respondent's Answer or Motion to
Dismiss, and requested an opportunity to assert that he is
entitled to equitable tolling of the limitations period.
( at 1-2).
11, 2014, the Court entered an order adopting the Final
Report and Recommendation of the Magistrate Judge and
granting Respondent's Motion to Dismiss. The Court held
that the record clearly establishes that the Magistrate Judge
correctly calculated the one-year limitations period,
correctly determined that statutory tolling did not apply,
and properly determined that the Petition was untimely. The
Court also addressed Petitioner's request for equitable
tolling, noting that equitable tolling is “an
‘extraordinary remedy' which requires a petitioner
to demonstrate both ‘(1) diligence in his efforts to
timely file a habeas petition and (2) extraordinary and
unavoidable circumstances.'” ( at 6, citing
Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir.
2006), modified on other grounds, 459 F.3d 1310 (11th Cir.
2006)). The Court denied Petitioner's request for another
opportunity to assert that he is entitled to equitable
Petitioner, in his objection to the R&R, sought an
opportunity to assert that he was entitled to equitable
tolling of the limitations period. Petitioner previously had
this opportunity when he first filed his Petition. (Pet. at
7-8). The Petition contains a section allowing the Petitioner
the opportunity to explain why the limitations period did not
bar his Petition. Petitioner failed then to assert that he
was entitled to equitable tolling. Petitioner has also not
provided any detail as to why he did not receive a copy of
the Answer, Motion to Dismiss, or the notice of filing of the
exhibits to the Motion to Dismiss, which Respondent certified
were all mailed to Petitioner. Since filing his objection to
the R&R over two months ago, Petitioner also has failed
to provide any support for his claim that he is entitled to
( at 7).
than three years later, on November 2, 2017, Petitioner filed
the instant Motion to Set Aside Void Judgment Pursuant to
Rule 60(b)(4) . Petitioner asserts a single ground for
At no time in any court state or federal has plaintiff ever
been properly put on NOTICE of the one year Statute of
limitation under 28 U.S.C. § 2244(d)(1). Unless and
until proper NOTICE has been given, plaintiff cannot be bound
by the Statute, the judgment order must ...