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Langford v. Ward

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

May 14, 2019

XAVIER LANGFORD, Petitioner,
v.
TIMOTHY C. WARD, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         The above-captioned case, filed pursuant to 28 U.S.C. § 2254, is before the Court for initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The Court REPORTS and RECOMMENDS the § 2254 petition be DISMISSED as untimely and this civil action be CLOSED.

         I. BACKGROUND

         On May 4, 2012, Petitioner pleaded guilty to armed robbery, attempted armed robbery, two counts of possession of a firearm during commission of a crime, and possession of marijuana with intent to distribute based on charges brought in Richmond County and Columbia County, Georgia, and the court sentenced Petitioner to ten years of confinement. (Doc. no. 1, p. 1; doc. no. 9, p. 1; doc. no. 9-1, p. 2; doc. no. 9-3, p. 2.) Petitioner does not report filing a direct appeal, but he did file a state habeas corpus petition in the Superior Court of Tattnall County, Georgia, on May 11, 2015. (Doc. no. 9, p. 2; doc. no. 9-1.) The state habeas court denied relief on December 27, 2017, (id.), and, on November 5, 2018, the Supreme Court of Georgia denied Petitioner's request for a certificate of probable cause to appeal, (doc. no. 9, p. 3; doc. no. 9-2, p. 2).

         Petitioner executed the instant federal habeas corpus petition on January 30, 2019, and he originally filed it in the Middle District of Georgia. (Doc. no. 1.) United States District Judge Marc T. Treadwell transferred the petition to the Southern District of Georgia because Petitioner challenges convictions obtained in the Superior Courts of Richmond and Columbia County. (Doc. no. 4.) Petitioner raised four grounds of error in his initial federal petition. (Doc. no. 1, pp. 5-10.) First, Petitioner argues his guilty plea was involuntarily and fraudulently entered. (Id. at 5.) Second, Petitioner argues he was constructively denied counsel. (Id. at 7.) Third, Petitioner argues his arrest was warrantless and illegal. (Id. at 8.) Fourth, Petitioner argues “subject matter jurisdiction was not legally obtained to impose a sentence.” (Id. at 10.) Petitioner states all grounds were presented to the state habeas court except for the fourth ground, which he claims is based on newly discovered evidence. (Id. at 5-10.) On April 16, 2019, Petitioner submitted an amended federal petition, which is virtually identical to his initial petition, except the amended petition includes several exhibits and does not include the claim raised in ground four of his initial petition. (See generally doc. nos. 9; 9-1 - 9-10.)

         II. DISCUSSION

         A. The Petition Is Time-Barred

         Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), there is a one-year statute of limitations for § 2254 motions that runs from the latest of:

(1)(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(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.

         Under § 2244(d)(1)(A), a judgment becomes final upon “the conclusion of direct review or the expiration of the time for seeking such review.” Because Petitioner did not file a direct appeal following his conviction in May of 2012, his conviction became “final” when the thirty-day period to appeal expired. O.C.G.A. § 5-6-38(a) (“A notice of appeal shall be filed within 30 days after entry of the ...


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