United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
Jones has filed a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254, challenging various defects in his state
criminal case. Doc. 1. Specifically, he argues that the
failure to return a “True Bill of Indictment . . . into
open court” violated his rights under the United States
Constitution's Fifth and Fourteenth Amendments and
created a “lack of jurisdiction.” Id. at
5, 7. He also alleges that his “arrest warrants are
void” for lack of probable cause and various formal
defects. Id. at 8. He also seeks leave to file his
§ 2254 petition in forma pauperis (IFP). Doc.
2. Finding him indigent,  the Court GRANTS his
IFP motion. Preliminary review under Rule 4 of the Rules
Governing Section 2254 Cases shows, however, that his
petition must be dismissed.
state collateral challenges to his conviction are pending.
See doc. 1 at 3 (discussing habeas petition filed in
Effingham County Superior Court on Dec. 3, 2018); see
also Id. at 4 (discussing a motion for an out-of-time
appeal filed in Effingham County Superior Court on Dec. 7,
2018). Despite the short time that has passed, he complains
that “[t]he court never responded back after filing
motion [sic].” Before seeking § 2254 relief,
however, petitioners must “fairly present” their
claims to state courts to give them a “full and fair
opportunity to resolve federal constitutional claims.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); 28 U.S.C. § 2254(b)(1)(A) (habeas petitioners
must “exhaust[ ] the remedies available in the courts
of the State” before seeking federal relief); see
also Reedman v. Thomas, 305 Fed.Appx. 544, 546 (11th
Cir. 2008) (“Generally, when a petitioner has failed to
exhaust state remedies, the district court should dismiss the
petition without prejudice to allow exhaustion.”).
Jones, by his own admission, has yet to do that. He must
fully exhaust his “right under the law of the
State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c) (emphasis
added). That includes awaiting a response from the state
Jones' claims are unexhausted, they also appear to suffer
from a fatal substantive defect. They are untimely by many
years. Jones 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.
petition alleges that, although he does not know the date of
his conviction, he was sentenced on July 21, 2010. Doc. 1 at
1. He alleges that he filed no direct appeal and, as
discussed above, filed collateral challenges in 2018.
Id. at 1-4. Since he filed no appeal, his conviction
became final on the date his time for seeking an appeal
expired. See, e.g., Phillips v. Warden, 908 F.3d
667, 671 (11th Cir. 2018) (“[I]f the petitioner fails
to timely pursue all available state relief on direct review,
his conviction becomes final when the time for seeking review
in the relevant state court expires.”). His conviction
was final, then, no later than August 20, 2010. See
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[.]”). Jones thus had one year
from that date-until August 22, 2011- to file a timely federal
petition or toll the limitations period by seeking state
collateral relief. Since the one-year period for seeking
relief under § 2254 had been expired for years before
any state proceedings commenced, those collateral proceedings
could have no tolling effect.
otherwise untimely petition “may still be timely if the
petitioner is entitled to equitable tolling.”
Aureoles v. Sec'y, Dept. of Corrs., 609
Fed.Appx. 623, 624 (11th Cir. 2014) (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). Jones, however,
indicates no fact demonstrating either his diligence or the
existence of extraordinary obstacles. Although he devotes
considerable space to a discussion of the timeliness of his
petition, doc. 1 at 13-14, 16, at most, that discussion
implies that he may challenge his allegedly void judgment in
state court at any time. As this Court has explained,
however: “Even if a defendant is allowed [under state
law] to file a motion to vacate a void and illegal sentence
at any time, in order for such a motion to toll the AEDPA
statute of limitation, the motion must be filed before the
expiration of that statute of limitation.” Moore v.
Toole, 2011 WL 5239115 at * 1 (S.D. Ga. Nov. 1, 2011)
(citing Tinker v. Moore, 255 F.3d 1331, 1333 (11th
Cir. 2001) (even a properly filed state petition “filed
following the expiration of the federal limitations period
cannot toll that period because there is no period remaining
to be tolled.” (quotes and cite omitted)). Whether he
can pursue a state remedy for his allegedly void sentence,
then, is irrelevant to the timeliness of his federal
it “plainly appears from the petition . . . that the
petitioner is not entitled to relief” at this time, the
Court “must dismiss the petition and direct the clerk
to notify the petitioner.” Rule 4, Rules Governing
Section 2254 Cases. Accordingly, this petition should be
DISMISSED without prejudice for lack of
exhaustion and as apparently untimely.This 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
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).
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. §
ORDERED AND REPORTED AND RECOMMENDED.
 Jones' motion concedes that he
“do[es] have the $5.00 filing fee” in his inmate
account “at this time.” Doc. 2 at 3. He is
concerned, however, that because of the small balance and
irregularity of deposits to that account it may be depleted
before the motion is considered. Id. The Court might
require him to submit current information about his finances,
but, as his petition is due for dismissal, the issue is
 Exhaustion is not required where
“there is an absence of available State corrective
process” or “circumstances exist that render such
process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b). The passage of a
few weeks without response from the state court does not
excuse the exhaustion requirement to invoke this Court's
jurisdiction. See, e.g., Hughes v. Stafford, 780
F.2d 1580, 1581 (11th Cir. 1986) (despite eight-year delay in
adjudication of state habeas petition, exhaustion requirement