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Mitchell v. Berry

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

February 19, 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 Toombs County conviction in 12-CR-92. Doc. 1. Respondent filed an Answer-Response and Motions to Dismiss. Docs. 6, 7, 8.[1]Mitchell filed a Response to the Motions to Dismiss. Doc. 11. For the reasons which follow, I RECOMMEND the Court GRANT Respondent's Motions to Dismiss, 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 Toombs County Superior Court on one count of theft by taking on August 9, 2012, in case number 12-CR-92. Doc. 9-1 at 1-2. After a negotiated plea, Mitchell was sentenced on this same date to 10 years' probation, to run concurrently with any other sentence, and ordered to pay $3, 900.00 in restitution. Id. at 4, 5. This judgment was filed on August 16, 2012. Id. at 4.

         On June 27, 2014, Mitchell's probation officer filed a petition for revocation of probation, alleging that Mitchell had committed identity fraud, aggravated identity fraud, and criminal trespass, and had failed to pay his restitution from his underlying Toombs County conviction. Doc. 9-2 at 1. After a show cause hearing, the Toombs County Superior Court found Mitchell guilty of the charged probation violations, sentenced him to serve five years in prison on August 21, 2014, and banished Mitchell from the Middle Judicial Circuit. Id. at 2; Doc. 1 at 1. Mitchell did not file a direct appeal. Doc. 8-1 at 1; Doc. 9-3 at 2.

         Mitchell filed a state application for petition for writ of habeas corpus in the Dooly County Superior Court on December 1, 2014, to challenge his Toombs County revocation. Doc. 1 at 2; Doc. 9-3. Mitchell asserted he received excessive punishment and fine in his original conviction 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 revocation proceedings; and there was insufficient evidence to support his convictions in both the original criminal proceedings and revocation proceedings. Doc. 9-3 at 4-6. 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. 9-4 at 1. After three evidentiary hearings, the Dooly County Superior Court's denial of Mitchell's state habeas petition was entered on December 29, 2015. Doc. 9-5; Doc. 9-6. 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. 9-5 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 required notice of appeal with the Dooly County Superior Court. Doc. 9-6.

         Mitchell executed this § 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 made false fraud allegations against him in the petition for revocation, and law enforcement officials and the trial court did not pursue these charges, nor do they “exist as pending charges on record with any law enforcement.” Doc. 1 at 5. Additionally, Mitchell states his probation officer and the alleged victim of the criminal trespass acted maliciously in having his probation revoked. Id. at 7.[2]

         Respondent contends Mitchell's § 2254 Petition is untimely because he did not file it within one year of his Toombs County revocation conviction becoming “final, ” and he is not entitled to tolling of the applicable statute of limitations period. Doc. 8-1 at 2, 6.

         I. Mitchell's Petition is Untimely

         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 ...

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