United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Russell G.
Vineyard's Final Report and Recommendation
(“R&R”) . The R&R considers
Petitioner Darren Petty's (“Petitioner”)
Petition for Writ of Habeas Corpus (“Petition”)
 and Respondent Gregory Dozier's
(“Respondent”) Motion to Dismiss . 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.
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]).
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.
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]).
filed this federal habeas petition on October 26, 2017.
(). 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. ( at 3-4).
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. ( 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.
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).
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.
Untimeliness and ...