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Mitchell v. Berry

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

February 1, 2019

WILLIAM GEORGE MITCHELL, Petitioner,
v.
WALTER BERRY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE.

         Petitioner William Mitchell (“Mitchell”), who is currently incarcerated at Autry State Prison in Pelham, Georgia, filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus challenging revocation proceedings arising from his Emanuel County conviction in 11-CR-19. Doc. 1. Respondent filed an Answer-Response and a Motion to Dismiss. Docs. 6, 7. Mitchell filed a Response to the Motion to Dismiss. Doc. 12. For the reasons which follow, I RECOMMEND the Court GRANT Respondent's Motion, DISMISS Mitchell's Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Mitchell in forma pauperis status on appeal and a Certificate of Appealability.

         BACKGROUND

         Mitchell was indicted in the Emanuel County Superior Court on two counts of theft by receiving stolen property on January 24, 2011, in case number 11-CR-19. Doc. 8-1 at 1-3. After a negotiated plea, Mitchell was sentenced on April 11, 2011, to 10 years' imprisonment on each count, to run concurrently with each other and any other sentence Mitchell was serving at that time and to pay $5, 285.00 in restitution. Upon service of two years' imprisonment, Mitchell would serve the remaining eight years of his sentence on probation. Id. at 4, 5. This judgment was filed the next day on April 12, 2011. Id. at 4. On June 17, 2014, Mitchell's probation officer filed a petition for revocation of probation, alleging that Mitchell has committed criminal trespass and failed to pay his restitution and a fee from his underlying Emanuel County convictions. Doc. 8-2 at 1. After a show cause hearing, the Emanuel County Superior Court found Mitchell guilty of the charged probation violations and sentenced him to serve five years in prison on July 16, 2014. Id. at 3; Doc. 1 at 1. Mitchell did not file a direct appeal. Doc. 7-1 at 1; Doc. 8-3 at 2.

         Mitchell did file a state application for petition for writ of habeas corpus in the Dooly County Superior Court on December 1, 2014, to challenge his revocation. Doc. 1 at 2; Doc. 8-3. Mitchell asserted he received excessive punishment and fine in his original and revocation proceedings; his right against double jeopardy was violated due to convictions in two different counties (Emanuel and Toombs) based on the same charges; certain witnesses perjured themselves during the Emanuel County revocation proceedings; and there was insufficient evidence to support his convictions in both the original criminal proceedings and revocation proceedings. Doc. 8-3 at 5-6. Mitchell amended his state application and stated the trial court erred: in failing to advise him of what rights he waived by pleading guilty in his original criminal prosecution; in failing to inform him he had the right to withdraw his guilty pleas; and by revoking his probation under O.C.G.A. § 42-8-34.1(b); and his trial counsel rendered ineffective assistance by failing to inform him of his appeal rights. Doc. 8-4 at 1. The Dooly County Superior Court's denial of Mitchell's state habeas petition was entered on December 29, 2015. Doc. 8-5; Doc. 8-6. By that order, the Dooly County Superior Court advised Mitchell he had 30 days to file an application for certificate of probable cause to appeal with the Georgia Supreme Court and a notice of appeal in the Dooly County Superior Court within that same 30 days. Doc. 8-5 at 10. The Supreme Court of Georgia dismissed Mitchell's application for certificate of probable cause to appeal the denial on December 8, 2016, after finding Mitchell failed to file the requisite notice of appeal with the Dooly County Superior Court. Doc. 8-6.

         Mitchell executed his § 2254 Petition on October 2, 2017, and it was filed in this Court on October 16, 2017. Doc. 1.

         DISCUSSION

         In his Petition, Mitchell avers his probation officer provided false fraud allegations against him in the petition for revocation, and law enforcement officials and the trial court did not pursue these charges. Doc. 1 at 5. Mitchell states he was falsely arrested and imprisoned “on a void criminal trespass warrant where no conviction procedure was done.” Id. at 6. Additionally, Mitchell states his probation officer and the alleged victim of the criminal trespass acted maliciously in having his probation revoked. Id. at 8.

         Respondent contends Mitchell's § 2254 Petition is untimely because he did not file it within one year of his Emanuel County revocation conviction becoming “final, ” and he is not entitled to tolling of the applicable statute of limitations period. Doc. 7-1 at 2, 6.

         I. Whether Mitchell Timely Filed his Petition

         Because Respondent challenges the timeliness of Mitchell's Petition, this Court must look to the applicable statute of limitations periods. 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 ...

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