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King v. Johnson

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

May 23, 2019

GLEN JOHNSON, Respondent.



         Before the Court is Respondent Glen Johnson's motion to dismiss Petitioner Eddie James King's 28 U.S.C. § 2254 petition for habeas corpus relief. (Doc. 1). Because the petition is untimely, it is RECOMMENDED that the motion to dismiss be GRANTED and Petitioner's habeas corpus petition be DISMISSED.[1]

         I. BACKGROUND

         On October 20, 2010, after a jury trial in Morgan County, Georgia, Petitioner was convicted of one count of possession of cocaine with intent to distribute and one count of possession of cocaine with intent to distribute within 1, 000 feet of a public park. (State Habeas Order, Doc. 13-5). The Georgia Court of Appeals, reviewing the lower court's denial of Petitioner's motion for a new trial, affirmed Petitioner's conviction on February 21, 2014. See King v. State, 325 Ga.App. 777, 755 S.E.2d 22 (2014). Petitioner filed for habeas relief in the Superior Court of Dooly County on September 26, 2014, alleging three instances of ineffective assistance of appellate counsel and a claim that the prosecutor in his case perpetrated fraud upon the court. (Doc. 13-5). On December 6, 2015, the state court denied Petitioner's application for habeas relief. (Id.). Petitioner then applied to the Georgia Supreme Court for a certificate of probable cause to appeal the denial of habeas corpus. (Doc. 13-6). The application was denied on January 16, 2018 (Id.), and remittitur from the denial was issued on February 1, 2018 (Doc. 13-7).

         Petitioner filed for federal habeas relief on October 10, 2018, raising the following grounds for relief: (1) the prosecutor failed to give Petitioner proper notice of aggravation and notice of intent to seek punishment under Georgia's recidivist statute (Doc. 1, p. 9); (2) appellate counsel was ineffective for failing to raise on appeal the argument that Petitioner's trial counsel was ineffective (Id.); (3) the sentencing judge imposed a recidivist sentence without informing Petitioner prior to sentencing that he was to be sentenced under Georgia's recidivist statute (Id., p. 10); and (4) the trial court violated Petitioner's Sixth Amendment right to confront the witnesses against him when the court declined Petitioner's motion to reveal the identity of a confidential informant (Id., p. 11).


         Because Petitioner's federal habeas petition was filed after the expiration of the one-year limitations period, see 28 U.S.C. § 2244(d)(1), the petition should be dismissed as untimely. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires all Section 2254 petitions to be filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”[2] 28 U.S.C. § 2244(d)(1)(A). Where, as here, a petitioner does not appeal his conviction to the state's highest court, the judgment becomes “final” when the time for seeking appellate review expires. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012).

         For Petitioner, the time for seeking direct review expired, thus triggering AEDPA's one-year limitations period, on March 3, 2014, ten days after the Georgia Court of Appeals affirmed his conviction. See Ga. Sup. Ct. R. 38(1) (requiring appellants to file a notice of intention to apply for certiorari within ten days after entry of judgment); Ga.Ct.App. R. 38(a) (same). Petitioner then allowed 208 days to run on his AEDPA clock before filing his state habeas petition on September 26, 2014. The remaining 157 days of Petitioner's allowance under AEDPA were tolled pending the resolution of his state habeas petition. Petitioner's AEDPA clock began to run once more upon the Georgia Supreme Court's issuance of the remittitur denying habeas relief on February 1, 2018. See Dolphy v. Warden, 823 F.3d 1342, 1345 (11th Cir. 2016) (“[W]hen a state habeas petitioner seeks a certificate of probable cause from the Georgia Supreme Court and the Court denies the request, the petitioner's case becomes complete when the Court issues the remittitur for the denial. This means that the case remains pending-and tolled-under § 2244(d)(2) until the [Georgia Supreme] Court issues the remittitur.” (citations omitted)). Petitioner then waited 252 days, or until October 10, 2018, to file his federal habeas petition.

         Because Petitioner filed for federal habeas relief 95 days too late, the petition is untimely unless he can demonstrate that he is entitled to equitable tolling of the limitations period. Petitioner has not demonstrated, nor does the record indicate, that the extraordinary remedy of equitable tolling is warranted under the circumstances of this case. See Holland v. Florida, 560 U.S. 631, 649 (2010) (“[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))). Petitioner has presented no evidence of any extraordinary circumstance that would have hindered him from filing a timely petition. Accordingly, Petitioner's federal habeas petition should be dismissed as untimely.


         It is RECOMMENDED that Respondent's motion to dismiss (Doc. 12) be GRANTED and Petitioner's 28 U.S.C. § 2254 petition be DISMISSED as untimely. Further, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases, it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is also RECOMMENDED that the Court deny a certificate of appealability in its final order.

         Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

         The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”

         SO ...

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