United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
1996, Anthony Mitchell pled guilty to multiple counts of
murder, burglary, armed robbery, and possession of a firearm
as a felon and he was sentenced to life in prison. Doc. 4 at
1; doc. 4-1 at 1. Though he did not appeal his conviction, he
moved to withdraw his guilty plea nearly two decades later in
November 2013. Doc. 4-1 at 1. That motion, as well as a
motion construed as an out-of-time appeal, was denied a month
later by the state court. Id. His subsequent January
2015 petition for state habeas relief was summarily denied as
untimely, having been filed “more than six years past
the statutory deadline.” Id. at 2 (explaining
that his conviction was “final” when O.C.G.A.
§ 9-14-42(c) went into effect July 1, 2004, giving him
until July 1, 2008 to file a timely habeas petition). In
September 2017, the Supreme Court of Georgia denied his
application for a certificate of probable cause to appeal
that dismissal. Id. at 4. He now petitions this
Court for 28 U.S.C. § 2254 relief, contending that his
petition is indeed timely. Doc. 4 at 13-14. It is not.
he was sentenced after the passing of the Anti-Terrorism and
Effective Death Penalty Act (AEDPA) (which was effective as
of April 24, 1996), Mitchell had to file for § 2254
relief within one year after the date his conviction became
final. 28 U.S.C. § 2244(d)(1). That clock is stopped only
by the pendency of a properly filed state direct appeal or
collateral review proceeding. 28 U.S.C. § 2244(d)(2);
Rich v. Sec'y for Dep't of Corr., 512
Fed.Appx. 981, 982-83 (11th Cir. 2013); Nesbitt v.
Danforth, 2014 WL 61236 at * 1 (S.D. Ga. Jan. 7, 2014)
(“28 U.S.C. § 2244(d)(1)'s one-year clock
ticks so long as the petitioner does not have a direct appeal
or collateral proceeding in play.”). Here, as clearly
set forth by the state habeas court, no such appeal or
collateral review proceeding exists.
on any claim and creating time gaps between proceedings can
be fatal. Kearse v. Sec'y, Fla. Dep't of
Corr., 736 F.3d 1359, 1362 (11th Cir. 2013);
Nesbitt, 2014 WL 61236 at * 1. And once the one-year
clock runs out, it cannot be restarted or reversed merely by
filing a new state court or federal action. Webster v.
Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (a state
post-conviction motion filed after expiration of the
limitations period cannot toll the period, because there is
no period remaining to be tolled); Nowill v. Barrow,
2013 WL 504626 at * 1 n. 3 (S.D. Ga. Feb. 8, 2013).
conviction became “final” either at the time of
his completion of the direct review process or when the time
for seeking such review became final. 28 U.S.C. §
2244(d)(1)(A); Coates v. Byrd, 211 F.3d 1225, 1226
(11th Cir. 2000). Judgment was entered in the Chatham County
Superior Court on May 24, 1996, and Mitchell did not file a
direct appeal. Doc. 4 at 1. Thus, his conviction became final
on or about June 24, 1996. O.C.G.A. § 5-6-38(a) (“A
notice of appeal shall be filed within 30 days after entry of
the appealable decision or judgment complained of[.]”).
Mitchell thus had one year from the date his conviction
became final -- until June 24, 1997 -- to file a timely
federal habeas petition or toll the limitations period by
seeking state collateral relief. 28 U.S.C. §
2244(d)(1)-(2); Rich, 512 Fed.Appx. at 982-83. His
state habeas petition, filed in 2015, came decades
too late. It thus had no tolling effect, since no time
remained on his § 2254 clock. Webster, 199 F.3d
that, his untimely petition “may still be timely if the
petitioner is entitled to equitable tolling.”
Aureoles v. Sec'y, D.O.C., 609 Fed.Appx. 623,
624 (11th Cir. 2015) (citing Damren v. Florida, 776
F.3d 816, 821 (11th Cir. 2015)); Steed v. Head, 219
F.3d 1298, 1300 (11th Cir. 2000) (“Section 2244 is a
statute of limitations, not a jurisdictional bar.”).
“A petitioner is entitled to equitable tolling if he
can demonstrate that: (1) he has pursued his rights
diligently; and (2) an extraordinary circumstance prevented
him from filing a timely petition.” Aureoles,
609 Fed.Appx. at 624; Holland v. Florida, 560 U.S.
631, 649 (2010).
however, presents nothing to indicate an extraordinary
circumstance stood in the way of timely filing. At most, he
explains that he was denied a hearing on his “federal
due process” claims because the state court never
reached the merits on his untimely petition. Doc. 4 at 2. But
that does not mitigate Mitchell's failure to timely file
his petition for federal habeas relief.
is simply no indication petitioner has diligently pursued his
rights or that some “extraordinary circumstance”
prevented him from timely filing a petition in this
Court. See Holland, 560 U.S. at 649;
Aureole s, 609 Fed. App'x at 624. Accordingly,
Anthony Mitchell's § 2254 petition is untimely and
should be DENIED.
the Certificate of Appealability (COA) standards, which are
set forth in Brown v. United States, 2009 WL 307872
at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no
COA-worthy issues at this stage of the litigation, so no COA
should issue. 28 U.S.C. § 2253(c)(1); see Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
sua sponte denial of COA before movant filed a
notice of appeal). And, as there are no non-frivolous issues
to raise on appeal, an appeal would not be taken in good
faith. Thus, in forma pauperis status on appeal
should likewise be DENIED. 28 U.S.C. §
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
REPORTED AND RECOMMENDED.
 That section provides for other events
which trigger the one-year limitations period, but none apply
here. See 28 U.S.C. ...