United States District Court, S.D. Georgia, Savannah Division
DINO L. HARDING, Petitioner,
CLINTON PERRY, Respondent.
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
a Chatham County, Georgia jury convicted petitioner Dino
Harding of, inter alia, armed robbery and false
imprisonment. Doc. 1 at 1; see also Allen v.
Harding, No. CR08-2946 (Chatham Super. Ct.) (sentence
imposed and case disposed of July 17, 2009); Harding v.
State, 311 Ga.App. 724 (2011) (affirming conviction);
Harding v. State, No. A11A0918 (Ga.App. Oct. 6,
2011) (remittur issued). His application for state habeas
relief has been denied, as has his petition for certiorari
See doc. 1 at 4 (listing Macon Superior Court case
2015-CV-152, filed August 2015 and denied March 2017) & 6
(listing Georgia Supreme Court case S171430, denying
certiorari on May 21, 2018). He now petitions this Court for
28 U.S.C. § 2254 relief. Id. He also seeks
leave to pursue his petition in forma pauperis. Doc.
2. Because he is indigent, Harding's motion to proceed
in forma pauperis is GRANTED.
Preliminary review under Rule 4 of the Rules Governing
Section 2254 Cases shows, however, that his petition must be
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 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.”).
Hence, sitting 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. 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); Dixon, 2013 WL 2385197 at * 3;
Nesbitt, 2014 WL 61236 at * 1.
Georgia Court of Appeals affirmed Allen's conviction and
sentence on September 20, 2011. Pursuant to that court's
rules, he then had ten days to file a notice of intent to
petition for a writ of certiorari. Ga.Ct.App. R. 38(a)(1). He
did nothing, and remittur was issued on October 6, 2011,
making his conviction final as of that date. See Gonzalez
v. Thaler, 132 S.Ct. 641, 653 (2012); 28 U.S.C. §
then had one year - until October 6, 2012 - to either file a
§ 2254 petition or toll the limitations period by
seeking state collateral relief. 28 U.S.C. § 2244(d)(2);
Rich, 512 Fed.Appx. at 982-83. Petitioner has filed
many motions in the state trial court, including motions to
reduce his sentence and motions to dismiss the charges
against him. See Harding, CR08-2946 (motion to
reduce sentence filed October 25, 2011 and denied March
2013). Even conceding, arguendo, that his motion to
reduce his sentence was a properly filed motion seeking state
collateral relief,  it only tolled the statutory deadline
until it was denied on March 21, 2013. That left 346 days on
the one-year clock, which expired on March 3,
2014. He did not seek state habeas relief until
August 19, 2015 - more than two years later and too late to
toll the deadline in this Court. Put differently, his state
habeas petition had no tolling effect, since no time remained
on his § 2254 clock. Webster, 199 F.3d at 1259;
see also Alexander v. Sec'y, Dep't of Corr.,
523 F.3d 1291, 1294 (11th Cir. 2008) (a state court motion
for post-conviction relief cannot toll the federal
limitations period if that period has already expired),
abrogated on other grounds by Wall, 562 U.S.
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)). “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.” Id.; Holland v. Florida,
560 U.S. 631, 649 (2010). Harding, however, presents nothing
to indicate an extraordinary circumstance stood in the way of
timely filing. There is no indication in his petition that he
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; Aureoles, 609 Fed. App'x at
624. See also No. CV414-169 at docs. 9, 12 & 13
(dismissing apparently untimely § 2254 motion for
failure to prosecute).
Dino Harding's § 2254 petition is untimely and
should be DISMISSED. Applying the
Certificate of Appealability (COA) standards 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 either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.”) (emphasis added). Any
motion for leave to appeal in forma pauperis
therefore is moot.
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 recommendation 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. U.S., 612 Fed.Appx. 542, 545 (11th Cir.
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. § 2244(d)(2)-(4).
 Not every post-conviction filing
constitutes a “collateral review” motion. Only
those state motions seeking “a judicial reexamination
of a judgment or claim in a proceeding outside of the direct
review process” must be considered motions for
“collateral relief” within the meaning of the
tolling statue. Wall v. Kholi, 562 U.S. 545, 553
(2011); id. at 550-52 (some states' motions to
reduce sentence provide a vehicle for challenging the
validity of the sentence equivalent to a Fed. R. Crim. P. 35
motion, rather than merely offering state courts with the
discretionary authority to mitigate a sentence). It is
unclear whether Harding's 2011 motion to reduce his
sentence counts, as it's not in the record and he
doesn't explain what statute he moved under or arguments
he made to the trial court. See Robertson v. Brown,
2014 WL 496283 at * 3-5 (S.D. Ga. Feb. 6, 2014) (an O.C.G.A.
§ 17-10-6 motion to reduce sentence is not a
motion for collateral relief within Wall's
meaning and thus does not toll the limitations period,
because Georgia law provides for various, “separate