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Hites v. Taylor

United States District Court, S.D. Georgia, Waycross Division

July 16, 2018

JOHN THURSTON HITES, Petitioner,
v.
WARDEN CEDRICK B. TAYLOR, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         After a 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. 1.)

         DISCUSSION

         In his 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.)

         I. Whether Hites Timely Filed his Petition

         A 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.

Id.

         Hites' 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 ...


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