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Petty v. Dozier

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

April 24, 2018

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

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Russell G. Vineyard's Final Report and Recommendation (“R&R”) [12]. The R&R considers Petitioner Darren Petty's (“Petitioner”) Petition for Writ of Habeas Corpus (“Petition”) [1] and Respondent Gregory Dozier's (“Respondent”) Motion to Dismiss [8]. The Magistrate Judge recommended that Respondent's Motion to Dismiss be granted and the Petition be dismissed as untimely. The Magistrate Judge recommended that a Certificate of Appealability (“COA”) not be issued.

         I. BACKGROUND

         On 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. ([9.2]). Petitioner timely filed a motion to withdraw his guilty plea, ([9.3]), which the trial court denied without a hearing, ([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. ([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. ([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. ([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. ([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. ([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. ([9.13]).

         Petitioner filed this federal habeas petition on October 26, 2017. ([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. ([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. ([11] at 3-4).

         On February 9, 2018, the Magistrate Judge issued his R&R, recommending that the Petition be denied as untimely, because the one-year limitations period for Petitioner to file a § 2254 petition expired on December 23, 2016. ([12] at 5). The Magistrate Judge also found that Petitioner has not alleged extraordinary circumstances that might excuse the late filing of his federal petition or cited to any reliable evidence not presented at trial to support a claim of actual innocence. ([Id. at 5-6]). Having found that the untimeliness of the Petition was not debatable, the Magistrate Judge recommended that a COA not be issued. ([Id.] at 6-8). Petitioner did not file an objection to the R&R.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112 (1983). Where, as here, a party has not asserted objections to the R&R, the Court conducts a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         B. Analysis

         The Magistrate Judge, after a careful and thorough review of the record, recommended in his R&R that the Court grant Respondent's Motion to Dismiss, dismiss the Petition as untimely, and deny granting a COA.

         1. Untimeliness and ...


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