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Dollar v. Tompkins

United States District Court, M.D. Georgia, Columbus Division

May 2, 2019

THOMAS RICHIE DOLLAR, JR, Petitioner,
v.
DONNA TOMPKINS, Respondent.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Presently pending before the Court is Respondent's motion to dismiss Petitioner's application for habeas relief. (ECF No. 10.) For the reasons described below, it is recommended that Respondent's motion be granted and Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) be dismissed as untimely.

         BACKGROUND

         According to Petitioner, he pleaded guilty to “Possession of Tools in the Commission of a Crime, Criminal Trespassing, Driving [with] License Suspended, [and] No Proof of Insurance” in February 2014. Pet. 1, ECF No. 1. He was sentenced to five years imprisonment with six months to serve. Id. Petitioner states that he did not seek review of this conviction in any forum. Id. at 2-4.

         Petitioner initiated this suit on May 14, 2018 (ECF No. 1). He only claims one ground for relief-that “[i]t's not a crime to ride in your automobile and have your tools inside your automobile; there was no crime being committed; I was only driving.” Pet. 5. On September 12, 2018, Respondent moved to dismiss Petitioner's application for habeas relief, arguing it “is barred because it is untimely.” Br. in Supp. of Mot. to Dismiss 1, ECF No. 10-1. Petitioner was notified of Respondent's motion on September 13, 2018 (ECF No. 11), but has not responded to it.[1]

         DISCUSSION

         I. Limitations Period

         The Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) was enacted primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions. “The purpose of the AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the . . . overloading of our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisdiction.” Hohn v. United States, 524 U.S. 236, 264-65 (1998). The AEDPA, which became effective on April 24, 1996, therefore instituted a time bar as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.
. . .
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d). Under the statute, the limitation period begins to run on “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). Thus, in order to determine whether a petition was timely filed, the Court “must determine (1) when the [collateral] motion was filed and (2) when [the] judgment of conviction became final.” McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir. 2009) (internal quotation marks and citation omitted) (alterations in original).

         II. Petitioner's Application

         According to Petitioner, the conviction he is challenging was issued in February 2014, and he did not appeal it directly or through any collateral review process. Therefore, his conviction became final on the expiration date of the period in which he could have sought direct review. See 28 U.S.C. § 2244(d)(1)(A) (explaining that in the context of determining the AEDPA limitations period, the judgment is final on the date of “the conclusion of direct review or the ...


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