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Grier v. Deal

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

November 1, 2019

LASHAWN DEANGELO GRIER, Petitioner,
v.
Warden JAMES DEAL, Respondent.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Presently 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.

         BACKGROUND

         On 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.

         On 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.

         On March 27, 2019, Petitioner filed his federal application for a writ of habeas corpus under 28 U.S.C. § 2254.[1] 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 review.

         DISCUSSION

         Respondent 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.

         I. The Applicable Limitations Period

         The 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 subsection.

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).

         II. Petitioner's ...


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