United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT
States Magistrate Judge Charles H. Weigle recommends granting
the Respondent's motion to dismiss Petitioner
Howard's application for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 because the petition was untimely
filed. Doc. 12. The Petitioner has objected, and pursuant to
28 U.S.C. § 636(b), the Court reviews the Recommendation
de novo. For the following reasons, the Recommendation (Doc.
12) is ADOPTED as modified, and the
Respondent's Motion to Dismiss (Doc. 8) is
1987, the Petitioner was convicted in state court of
aggravated assault, kidnapping with bodily injury, and rape.
Doc. 12 at 1. As recounted by the Georgia Court of Appeals,
“[t]he procedural history of Howard's case
following his 1987 conviction can aptly be described as
tortuous.” Howard v. State, 340 Ga.App. 133,
135, 796 S.E.2d 757, 761 (2017). In 1989, the
Petitioner's motion for a new trial in the trial court
was denied. Id. at 796, 761. The record for what
followed the 1989 ruling is murky, and the parties have not
communicated much of the relevant procedural history. It is
unclear whether or when the Petitioner received a copy of the
order denying his motion for a new trial, but he claims he
did not receive that order until 1992. Id. His
direct appeal was dismissed as untimely. Doc. 12 at 1.
According to the Georgia Court of Appeals, “[o]ver the
course of the next 20 years, Howard, for the most part acting
pro se, filed numerous motions with the trial court
and nearly as many unsuccessful attempts to appeal the
denials of those motions.” Howard, 340 Ga.App.
at 135, 796 S.E.2d at 761.
motions included applications for state postconviction relief
and for a writ of habeas corpus. Again, because the record is
scant on procedural history, the Court's only source for
that history is a brief from the Petitioner's first
federal habeas action, Howard v. Smith,
5:05-cv-91. In that brief, the respondent claimed the
Petitioner had filed a 2003 petition for state postconviction
relief in the Superior Court of Tattnall County, which was
denied, and that the Georgia Supreme Court denied a
certificate of probable cause to appeal in 2004.
Howard, 5:05-cv-91, Doc. 35 at 3. The
respondent's counsel referenced exhibits it had filed
with the court, exhibits which presumably supported that
procedural history. See id. It is unclear from the
record why the superior court denied postconviction relief.
2005, the Petitioner filed his first application for a writ
of habeas corpus in this Court, but the application was
dismissed as untimely. The Court concluded that because his
conviction had become final several years before the
enactment of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), the one-year limitations
period began to run on April 24, 1996. Howard,
5:05-cv-91, Docs. 63; 54 at 2. Because the Petitioner filed
his first state petition in 2003 and his first federal
petition in 2005, the Court found the 2005 petition untimely.
Howard, 5:05-cv-91, Docs. 63; 54 at 2; 35 at 5.
2013, Howard moved in state court for leave to file an
out-of-time appeal, alleging he did not receive, until 1992,
a copy of the trial court's 1989 order denying his motion
for reconsideration. See Howard, 340 Ga.App. at
135-36, 796 S.E.2d at 761. Like Howard's previous
motions, that one was denied. Id. But the Georgia
Court of Appeals “vacated the trial court's
judgment” and remanded for the trial court to
determine whether Howard had received timely notice of the
1989 order. Id. The trial court found it could not
determine whether Howard had received notice before 1992 and
granted leave to file an out-of-time appeal. Id. In
the new appeal, the Petitioner argued the evidence was
insufficient to support his conviction, the state had failed
to carry its burden of proving venue beyond a reasonable
doubt, and the trial court erred in denying his claim for
ineffective assistance of counsel. Id. at 135-142,
761-765. On February 1, 2017, The Georgia Court of Appeals
addressed those arguments on the merits and affirmed the
trial court's 1987 conviction and 1989 denial of his
motion for a new trial. Id.
that affirmance, the Petitioner filed the present petition on
January 31, 2018, raising many of the same arguments he
raised in his out-of-time appeal, but adding a claim of
ineffective assistance of counsel handling the out-of-time
appeal. Doc. 12 at 3-4. The Magistrate Judge found that
“[o]nly Petitioner's claims of ineffective
assistance of appellate counsel relating to Petitioner's
out-of-time direct appeal are properly before the Court, as
those claims did not arise or ripen until after the
conclusion of the Petitioner's prior Section 2254 habeas
petition.” Id. at 4-5 (citing Stewart v.
United States, 646 F.3d 856, 863 (11th Cir. 2011)).
Magistrate Judge noted that the ineffective assistance of
appellate counsel claims are being litigated in pending state
postconviction proceedings and are, therefore, subject to
dismissal for failure to exhaust. Id.; see
Doc. 10-1. After review, the Court accepts and adopts the
above findings and conclusions.
the failure to exhaust, the Magistrate Judge ultimately
recommended dismissing the petition as untimely, finding that
the Petitioner's conviction became final on April 24,
1996, and the one-year limitations period imposed by AEDPA
had lapsed. Doc. 12 at 5; see 28 U.S.C. §
2244(d)(1)(A). However, there are a few
considerations which support dismissing for failure to
exhaust rather than dismissing for untimeliness. Foremost is
the problem of determining when the conviction became final.
AEDPA provides that the one-year limitations period runs from
the “latest of” four triggering dates. The first,
which is the only one addressed in the Respondent's
motion to dismiss, is the “date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28
U.S.C. § 2244(d)(1)(A). Typically, a state court's
grant of out-of-time direct appeal reopens the finality of
the conviction and resets the statute of limitations.
Jimenez v. Quarterman, 555 U.S. 113 (2009). Under
Jimenez, therefore, the Petitioner's conviction
would not be final until some time after February 1,
2017. As the Magistrate Judge noted, however,
Jimenez expressly declined to consider whether a
state court's grant of out-of-time direct appeal reopens
the finality of the conviction where, as here, a federal
habeas petition had already been filed. Id. at 121.
There is some support for the proposition that the grant of
an out-of-time appeal does not reopen finality when a federal
habeas petition has previously been filed. O'Neal v.
Kenny, 579 F.3d 915 (8th Cir. 2009), cert.
denied, 559 U.S. 911.
O'Neal does not definitively resolve the issue
for two reasons. First, the Eleventh Circuit has not yet
addressed whether finality is reopened by the grant of an
out-of-time appeal when a prior federal habeas petition was
filed. Second, the effect of a grant of out-of-time appeal on
finality under 28 U.S.C. § 2244(d)(1)(A) likely depends,
in part, on state law. In O'Neal, the court
found the date of finality was unaffected by the out-of-time
appeal, in part because “the grant of a new direct
appeal constitute[d] a new appellate process” under
Nebraska law. O'Neal v. Kenny, 501 F.3d 969, 970
(8th Cir. 2007), cert. granted, judgment vacated,
555 U.S. 1133 (2009), opinion reinstated in part,
579 F.3d 915 (2009) (“We therefore adopt our prior
analysis in O'Neal III, 501 F.3d at 970-71, and
conclude that O'Neal's petition is time
barred.”). In Jimenez, by contrast, the Texas
Court of Criminal Appeals had expressly described its grant
of an out-of-time appeal as a reinstatement of his
direct appeal, rather than a new appellate process.
Jimenez, 555 U.S. at 116; see also Brooks v.
Cain, 354 Fed.Appx. 870, 872 (5th Cir. 2009) (citations
omitted) (noting that the grant of an out-of-time appeal in
Louisiana is, like that in Texas, a
“‘reinstatement of [the] right to
appeal'”). Because the Georgia Court of Appeals
decision granting an out-of-time appeal is not on record and
because the motion to dismiss does not address the applicable
state law, the Respondent has failed to demonstrate the
petition is untimely.
the Petitioner has stated enough facts to indicate that 28
U.S.C. § 2244(d)(1)(D), rather than §
2244(d)(1)(A), may apply to his ineffective assistance of
appellate counsel claim. Zack v. Tucker, 704 F.3d
917, 922-23 (11th Cir. 2013) (holding “that the statute
of limitations in AEDPA applies on a claim-by-claim
basis”). Under 28 U.S.C. § 2244(d)(1)(D), the
limitations period runs from “the date on which the
factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.”
An ineffective assistance of counsel claim requires the
Petitioner to show deficient performance and prejudice, and
the alleged errors by counsel and prejudice resulting from
those errors would not have been reasonably discoverable
before he received notice that the Court of Appeals affirmed
the original conviction. See Strickland v.
Washington, 466 U.S. 668 (1984). Because the opinion
affirming the conviction was issued on February 1, 2017, the
Petitioner's application for a writ of habeas in this
case, filed January 31, 2018, is timely if §
2244(d)(1)(D) applies. Howard, 340 Ga.App. at 133,
796 S.E.2d at 757; Howard, 5:18-cv-41, Doc. 1;
see Aufleger v. Saffle, 3 Fed.Appx. 861,
864 (10th Cir. 2001) (applying § 2244(d)(1)(D) to an
ineffective assistance of counsel claim); Hasan v.
Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001) (same);
see also Johnson v. United States, 544 U.S. 295
(2005) (holding that notice of a court order can be a
“fact” to start AEDPA's one-year period
running in the context of § 2255); Means, Federal
Habeas Manual § 9A:38 (discussing when a court
order can qualify as a “factual predicate” for
purposes of § 2244(d)(1)(D)).
§ 2244(d)(1)(D) applies, however, the ineffective
assistance of appellate counsel claim is still unexhausted.
This claim is currently pending in the Petitioner's state
habeas action, which was filed on January 22, 2018. Doc. 12
at 5; see Doc. 10-1. Accordingly, the Petitioner has
failed to exhaust his claims, including his claim for
ineffective assistance of appellate counsel. Doc. 12 at 5. On
the failure to exhaust, the Court accepts and adopts the
findings and conclusions of the Magistrate
Judge. The Respondent, therefore, has failed to
show the petition is subject to dismissal for untimeliness,
but has shown it is subject to dismissal for failure to
because the Petitioner has not made a substantial showing
that he was denied a constitutional right and because the
Court's ruling that the Petitioner has not exhausted his
claims is not “debatable among jurists of reason,
” see Buck v. Davis, 137 S.Ct. 759, 777
(2017), the Court agrees with the Magistrate Judge that a
certificate of appealability should be denied. Doc. 12 at 10.
Accordingly, the Recommendation (Doc. 12) is ADOPTED
as modified, the Defendant's motion to dismiss
(Doc. 8) is GRANTED, and the petition (Doc.
1) is DISMISSED without prejudice. A
certificate of appealability is DENIED.
Moreover, because there are no non-frivolous issues to raise
on appeal, an appeal would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3). Accordingly, any
motion to proceed in forma pauperis on appeal is