United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
pending before the Court is Respondent's motion to
dismiss Petitioner's application for habeas relief as
untimely (ECF No. 7). For the reasons stated below, the Court
recommends that Respondent's motion be granted and
Petitioner's application for a writ of habeas corpus
under 28 U.S.C. § 2254 be dismissed as untimely.
August 10, 2011, a Monroe County, Georgia grand jury indicted
Petitioner for one count of armed robbery and one count of
robbery by intimidation. Resp't's Ex. 5, at 1, ECF
No. 9-5; Pet'r's Exs. 1, ECF No. 12. On March 26,
2012, Petitioner pled guilty to the armed robbery, and the
robbery by intimidation charge was nolle prossed. Pet. 1, ECF
No. 1; Resp't's Ex. 1, at 1-2, ECF No. 9-1. The
Superior Court of Monroe County sentenced Petitioner to
twenty years, with fifteen years to serve and five years
probation. Pet. 1; Resp't's Ex. 1, at 1. Petitioner
did not appeal.
September 10, 2013, Petitioner filed a state application for
writ of habeas corpus in the Superior Court of Richmond
County, Georgia. Resp't's Ex. 2, at 1-7, ECF No. 9-2.
On February 11, 2014, Petitioner filed a brief in support of
his state habeas application, and he amended his application
on December 19, 2014. Resp't's Ex. 3, at 13, ECF No.
9-3; Resp't's Ex. 4, at 4, ECF No. 9-4. After his
application was transferred, the Superior Court of Lowndes
County, Georgia denied the application on October 12, 2017.
Resp't's Ex. 5, at 1-17, ECF No. 9-5. On April 16,
2018 the Supreme Court of Georgia denied Petitioner's
application for a certificate of probable cause to appeal the
denial of his state habeas application. Resp't's Ex.
6, at 1, ECF No. 9-6.
March 27, 2019, Petitioner filed his federal application for
a writ of habeas corpus under 28 U.S.C. §
2254. Pet. 15. He raises three grounds in his
application: (1) his indictment was invalid because it lacked
facts to support its issuance, (2) his indictment was invalid
because it lacked a certificate of authenticity indicating it
was filed in open court, and (3) his trial counsel was
ineffective because counsel failed to investigate the
validity of Petitioner's arrest warrant, failed to secure
him bond, and coerced him into pleading guilty. Pet. 5-8, 10.
On July 17, 2019, Petitioner amended his application by
alleging new facts in support. Am. Pet. 1-3, ECF No. 5.
Respondent answered (ECF No. 6) and filed this motion to
dismiss (ECF No. 7) on August 30, 2019. Petitioner responded
(ECF No.11) on September 16, 2019. This motion is ripe for
moves to dismiss Petitioner's application for habeas
relief because it was filed outside the applicable
limitations period. Mem. in Supp. of Mot. to Dismiss 2-6, ECF
No. 7-1. The Court agrees Petitioner's application for
habeas relief is untimely and recommends that
Respondent's motion to dismiss be granted.
The Applicable Limitations Period
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. Hohn v. United States, 524 U.S. 236,
264-65 (1998) (“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.”). The AEDPA, effective 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
28 U.S.C. § 2244(d). 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).
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).