United States District Court, S.D. Georgia, Savannah Division
ANTONIO T. WALTON, Petitioner,
EDWARD PHILBIN, Warden, Respondent.
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE
request for habeas relief is largely unintelligible,
repeating ad nauseam the same allegation - indeed, the same
paragraph - that a witness in an unidentified proceeding lied
and seeking 25 trillion dollars and immediate release from
custody for the affront. Doc. 11. Fortunately, an Offender
Inquiry Search with the Georgia Department of Corrections
revealed a Chatham County conviction and sentence. See doc.
14 at 2 (transferring petition to Savannah District), citing
www.dcor.state.ga.us. The Chatham County Superior Court case
portal further elucidated matters. See
January 2011 petitioner Antonio T. Walton pled guilty to
felony rape and battery in Chatham County, Georgia. See State
v. Walton, No. CR08-1108 (Chatham Super. Ct.) (25-year
sentence imposed and case disposed of January 10, 2011); see
also doc. 11 at 13 (single reference to a 25-year sentence
imposed on January 24, 2011). Starting in the summer of 2017,
Walton launched a litany of pro se letters at the state
criminal court requesting copies of various records, perhaps
for use in a collateral attack upon his conviction. See
Id. He did not, however, appeal or pursue state
habeas relief. See doc. 11. Walton now petitions this Court
for 28 U.S.C. § 2254 relief. Id. He also seeks
leave to pursue his petition in forma pauperis. Doc. 2.
Because he is indigent, Walton's motion to proceed in
forma pauperis in this habeas case is GRANTED. Preliminary
review under Rule 4 of the Rules Governing Section 2254 Cases
shows, however, that his petition should be DISMISSED.
had to file for § 2254 relief within one year after the
date his conviction became final. 28 U.S.C. §
2244(d)(1). That clock is stopped only by the pendency
of a properly filed state collateral review proceeding. 28
U.S.C. § 2244(d)(2); Rich v. Sec'y for Dep't
of Corr., 512 Fed.Appx. 981, 982-83 (11th Cir. 2013);
Nesbitt v. Danforth, 2014 WL 61236 at * 1 (S.D. Ga.
Jan. 7, 2014) (“28 U.S.C. § 2244(d)(1)'s
one-year clock ticks so long as the petitioner does not have
a direct appeal or collateral proceeding in play.”).
Hence, sitting on any claim and creating time gaps between
proceedings can be fatal. Kearse v. Sec'y, Fla.
Dep't of Corr., 736 F.3d 1359, 1362 (11th Cir.
2013); Nesbitt, 2014 WL 61236 at * 1. Once the
one-year clock runs out, it cannot be restarted or reversed
merely by filing a new state court or federal action.
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.
2000) (a state post-conviction motion filed after expiration
of the limitations period cannot toll the period, because
there is no period remaining to be tolled); Nowill v.
Barrow, 2013 WL 504626 at * 1 n. 3 (S.D. Ga. Feb. 8,
2013); Dixon, 2013 WL 2385197 at * 3;
Nesbitt, 2014 WL 61236 at * 1.
conviction became “final” either at the time of
his completion of the direct review process or when the time
for seeking such review expired. 28 U.S.C. §
2244(d)(1)(A); Coates v. Byrd, 211 F.3d 1225, 1226
(11th Cir. 2000). Judgment was entered in Chatham County
Superior Court on January 10, 2011, and Walton did not file a
direct appeal. Thus, his conviction became final on or about
February 9, 2011. O.C.G.A. § 5-6-38(a) (“A notice
of appeal shall be filed within 30 days after entry of the
appealable decision or judgment complained of[.]”).
Walton thus had one year from the date his conviction became
final -- until February 9, 2012 -- to file a timely federal
habeas petition or toll the limitations period by seeking
state collateral relief. 28 U.S.C. § 2244(d)(1)-(2);
Rich, 512 Fed.Appx. at 982-83. He did neither. This
petition, filed seven years later, is untimely.
that, his untimely petition “may still be timely if the
petitioner is entitled to equitable tolling.”
Aureoles v. Sec'y, D.O.C., 609 Fed.Appx. 623,
624 (11th Cir. 2015) (citing Damren v. Florida, 776
F.3d 816, 821 (11th Cir. 2015)). “A petitioner is
entitled to equitable tolling if he can demonstrate that: (1)
he has pursued his rights diligently; and (2) an
extraordinary circumstance prevented him from filing a timely
petition.” Id.; Holland v. Florida,
560 U.S. 631, 649 (2010). Walton, however, presents nothing
to indicate an extraordinary circumstance stood in the way of
timely filing. See doc. 11 (arguing, unaltered and
in full, that his motion is timely because “by motion
to suppress follow by motion for petitioner to be brought
before a honerble federal court to determin wheather or not
warden has legal rights to detain petitioner under legal
law.”). There is no indication in his petition that he
diligently pursued his rights or that some
“extraordinary circumstance” prevented him from
timely filing a petition in this Court. See Holland,
560 U.S. at 649; Aureoles, 609 Fed. App'x at
Antonio Walton's § 2254 petition is untimely and
should be DISMISSED. Applying the
Certificate of Appealability (COA) standards set forth in
Brown v. United States, 2009 WL 307872 at * 1-2
(S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy
issues at this stage of the litigation, so no COA should
issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2254 (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.”) (emphasis added). Any
motion for leave to appeal in forma pauperis
therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 Fed.Appx. 787, 790 (11th Cir. 2016);
Mitchell v. U.S., 612 Fed.Appx. 542, 545 (11th Cir.
REPORTED AND RECOMMENDED.
 That section provides for other events
which trigger the one-year limitations period, but none apply
here. See 28 U.S.C. ...