United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE
John Thurston Hites (“Hites”), currently
incarcerated at Baldwin State Prison in Hardwick, 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 Atkinson County, Georgia.
(Doc. 1.) Respondent filed an Answer-Response and a Motion to
Dismiss. (Docs. 10, 11.) Hites filed a Response to the Motion
to Dismiss. (Doc. 13.) For the reasons set forth below, I
RECOMMEND the Court GRANT
Respondent's Motion, DISMISS Hites'
Petition, DIRECT the Clerk of Court to enter
the appropriate judgment of dismissal and
CLOSE this case, and DENY
Hites in forma pauperis status on appeal and a
Certificate of Appealability.
jury trial in November 2011, Hites was found guilty of felony
murder and aggravated assault. (Doc. 1, p. 1; Doc. 11-1, p.
1); see also Hites v. State, 769 S.E.2d 364 (Ga.
2015). On November 17, 2011, the trial court sentenced Hites
to life in prison, and the Georgia Supreme Court affirmed.
Id. at 367 n.1, 370. On December 13, 2016, Hites
executed a state habeas corpus petition challenging his
felony murder conviction in the Superior Court of Baldwin
County, Georgia. (Doc. 12-1, p. 18.) After an evidentiary
hearing, the Baldwin County court denied Hites' petition
on November 6, 2017. (Doc. 12-2.) Hites did not file a motion
for reconsideration or an appeal of this denial. Hites
executed this Section 2254 Petition on September 18, 2017,
and it was filed in this Court on September 21, 2017. (Doc.
Petition, Hites alleges that his trial and appellate counsel
rendered ineffective assistance. (Doc. 1-1.) Respondent
contends that Hites untimely filed his Section 2254 Petition
because he did not file it within one year of his Atkinson
County conviction being “final.” (Doc. 11-1, p.
4.) Hites filed a Response arguing that the Court should
overlook his untimely filing because his appellate counsel
inaccurately advised Hites as to when he could timely file a
state and federal habeas petition. (Doc. 13, p. 2.)
Whether Hites 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
exercise of due diligence.
conviction became final 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). Hites was sentenced in the Atkinson County Superior
Court on November 17, 2011. (Doc. 1, p. 1.) On February 16,
2015, the Georgia Supreme Court affirmed Hites' Atkinson
County convictions and sentence. (Id. at p. 2);
Hites, 769 S.E.2d at 367. Hites had ninety (90) days
to file a petition for a writ of certiorari to the United
States Supreme Court. Sup. Ct. R. 13. Hites did not file a
writ of certiorari, and thus, his ...