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Alford v. Carr

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

May 9, 2019

ANTONIO G ALFORD, Petitioner,
v.
CHRISTOPHER CARR, Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Presently pending before the Court is Respondent's original and amended motions to dismiss Petitioner's application for habeas relief (ECF Nos. 13, 22). In addition, Petitioner has filed an amendment to his application which includes a request for an evidentiary hearing. 3rd Am. Pet. 2, ECF No. 23. For the reasons described below, it is recommended that Respondent's motion to dismiss be granted and Petitioner's application for habeas relief under 28 U.S.C. § 2254 be dismissed as untimely. Petitioner's request for an evidentiary hearing is denied.

         BACKGROUND

         Petitioner filed his original federal application for habeas relief on August 23, 2018, asking the Court to “expunge, set aside, and remove all prior convictions of the State of Georgia from his record.” Pet. 14, 15, ECF No. 1. He did not list the particular convictions for which he sought relief, but he did refer to his “last conviction” being obtained through an “unconstitutional unreasonable bond revocation” and attached a copy of a future arraignment notice for a pending case in the State Court of Muscogee County, Georgia. Pet. 14; Pet. Attach. 1, at 9, ECF No. 1-1. On October 15, 2018, he amended his petition to reference a “2015/2016 state court conviction.” 1st Am. Pet. 1, ECF No. 6.

         On November 16, 2018, Respondent moved for a more definite statement and requested that Petitioner specifically identify the convictions he sought to challenge. Mot. for More Definite Statement 3, ECF No. 9. The Court granted the motion and ordered Petitioner to amend his petition to identify the court, case number, and date of each conviction he was challenging. Order, Nov. 19, 2018, ECF No. 10. Petitioner responded by filing another amended petition in which he once again asserted he was challenging “all prior convictions.” 2nd Am. Pet. 1, ECF No. 11. He specifically listed five convictions by docket number, arrest date, and disposition Dated:

1) SU-95-CR-707-5, arrest June 7, 1994, disposition April 14, 1995
2) SU-95-CR-1086-5, arrest March 25, 1995, disposition April 14, 1995
3) SU-96-CR-1120-8, arrest December 17, 1995, disposition May 9, 1996
4) SU-98-CR-1041, arrest February 22, 1998, disposition April 24, 1998, and
5) SU-98-CR-42, arrest May 4, 1998, disposition October 12, 1998

Id. at 2. Petitioner did not identify the courts of conviction. He also stated he was challenging a 2015 conviction in an unspecified “state court” but did not identify the docket number or disposition date. Id.

         On January 7, 2019, Respondent moved to dismiss Petitioner's application for habeas relief on the grounds that it was untimely and because Petitioner was not in custody. Mot. to Dismiss 1, ECF No. 13. Petitioner responded to the motion on February 6, 2019 (ECF No. 17), and Respondent replied on February 8, 2019 (ECF No. 18). On February 21, 2019, Petitioner filed an amended response to the motion to dismiss (ECF No. 19). The Court ordered supplemental briefing, and on April 17, 2019, Respondent filed an amended brief in support of his motion to dismiss (ECF No. 22). Petitioner filed a third amended petition on April 25, 2019, which includes a request for an evidentiary hearing. 3rd Am. Pet. 2. Respondent opposes the request (ECF No. 24).

         DISCUSSION

         I. Respondent's Motion to Dismiss

         Respondent moves to dismiss Petitioner's application for habeas relief on the grounds that it is untimely and because Petitioner does not meet the “in custody” requirement of 28 U.S.C. § 2254(d). Br. in Supp. of Mot. to Dismiss 3-10, ECF No. 13-1. Because the Court finds Petitioner's application is untimely, it recommends his application ...


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