McCoy v. Danforth

NORRIS R. McCOY, Petitioner, v. WILLIAM DANFORTH, Respondent.

1:15-cv-1794-WSD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

November 5, 2015

OPINION AND ORDER

This matter is before the Court on Magistrate Judge J. Clay Fuller's Final Report and Recommendation ("R&R"), recommending that Respondent William Danforth's ("Respondent") Motion to Dismiss Petition as Untimely [7] ("Motion to Dismiss") be granted, that Petitioner Norris R. McCoy's ("Petitioner") Petition for Writ of Habeas Corpus [1] ("Habeas Petition") be dismissed, and that a certificate of appealability be denied.

I. BACKGROUND¹

On April 16, 2007, in a joint appeal filed by Petitioner and his co-defendant, the Georgia Court of Appeals affirmed Petitioner's convictions and sentences. McCoy v. State, 645 S.E.2d 608 (Ga. Ct. App. 2007). Petitioner did not file a direct appeal to the Georgia Supreme Court. (See Pet. [1] at 2). On March 21, 2008, Petitioner filed a state habeas petition in the Superior Court of Tattnall County. ([8.1]). On February 15, 2012, the state habeas court denied the petition. ([8.2]).

On April 20, 2015, the Georgia Supreme Court denied as untimely Petitioner's application for a certificate of probable cause ("CPC") to appeal the state habeas court's denial. ([8.3]). The Georgia Supreme Court wrote:

The habeas court denied petitioner's petition for a writ of habeas corpus by order dated February 15, 2012. Petitioner did not file a notice of appeal, however, and did not file his application for a certificate of probable cause to appeal until November 10, 2014, which was well outside the 30 days allowed by OCGA § 9-14-52(b). As the application is therefore untimely, it hereby is dismissed, seeFullwood v. Sivley, 271 Ga. 248 (517 SE2d 511) (1999).

The Court notes, however, that petitioner claims he did not receive the habeas court's order until after a 2014 inquiry into the status of his case. Petitioner's remedy if he did not timely receive the order is to file a motion to set aside the order in the habeas court, seeCambron v. Camal Ins. Co., 246 Ga. 147, 148-149 (1) (269 SE2d 426) (1980). If the habeas court finds that it failed in its duty to provide petitioner with timely notice of the final order, it should both set aside the order and re-enter it, after which petitioner can timely pursue an appeal under OCGA § 9-14-52(b), seeVeasley v. State, 272 Ga. 837, 838-39 (537 SE2d 42) (2000). All the Justices concur.

([8.3]).

Petitioner signed and filed his federal habeas petition on May 12, 2015.² (Pet. at 8). In it, he raised the following claims: the prosecutor withheld exculpatory evidence, namely two composite sketches, one of which did not fit the description of Petitioner; ineffective assistance of counsel for failure to challenge the prosecutor's withholding of these sketches; the prosecutor's closing argument was improper when he pointed at the jurors and asked, "Who's next? Is it one of you?"; the prosecutor did not provide timely notice of the State's intention to seek recidivist punishment; and the trial court erred with respect to the prosecutor'sclosing argument and the prosecutor's withholding of exculpatory evidence. (Id. at 5-6) .

On July 16, 2015, Respondent filed his Motion to Dismiss. In it, he argued that the Habeas Petition should be dismissed as untimely because: Petitioner's convictions became final on April 26, 2007 (ten days after the Georgia Court of Appeals affirmed the convictions on direct appeal); the one-year federal limitations period ran until Petitioner filed his state habeas petition on March 21, 2008; because Petitioner filed an untimely CPC application, the federal limitations period began to run again on March 17, 2012 (thirty days after the state habeas court denied his petition on February 15, 2012); and the federal limitations period expired thirty five (35) days thereafter, years before Petitioner filed his Habeas Petition on May 12, 2015. Petitioner responded that, although his state habeas petition was denied on February 15, 2012, he did not receive notice until April 25, 2014, after writing to the Clerk of Court of Tattnall County. (Resp. [12] at 4-5).³

On August 19, 2015, the Magistrate Judge issued his R&R. The Magistrate found that statutory tolling and equitable tolling do not apply to save the Habeas Petition, and Petitioner has not presented "new reliable evidence" that might support a claim of actual innocence. (R&R at 5-11). He also recommended that a certificate of appealability is not warranted. (Id. at 11-12).

On August 31, 2015, Petitioner filed his objections to the R&R [15] ("Objections"). Petitioner repeats his argument that he was "not notified of the final order of state habeas petition that was denied on February 15, 2012." (Obj. at 1-2). He argues that he sent "three letters" to the Clerk of Court of Tattnall County, establishing that he diligently pursued his rights. (Id. at 4).

II. DISCUSSION

A. Legal Standard

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to whichobjection is made." 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).

B. Analysis

1. Untimeliness

Though Petitioner appears only to object to the Magistrate's determination regarding equitable tolling, the Court conducts its review of the Magistrate's untimeliness determination de novo.⁴ 28 U.S.C. § 636(b)(1).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year statute of limitations to filing a habeas corpus action attacking a state conviction. 28 U.S.C. § 2244(d)(1). The limitations period runs from the latest of:

(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.

28 U.S.C. § 2244(d)(1)(A-D).

Because Petitioner obtained appellate review in the Georgia Court of Appeals but did not seek certiorari in the Supreme Court of Georgia, his judgment of conviction became final on April 26, 2007, at the close of the ten-day period for seeking certiorari review after the Georgia Court of Appeals affirmed his convictions and sentences on April 16, 2007. See Ga. Sup. Ct. R. 38 (allowing ten (10) days to file notice of intent to seek certiorari review); Pugh v. Smith, 465 F.3d 1295, 1299-1300 (11th Cir. 2006). Unless statutory or equitable tolling applies, the federal limitations period expired one year later, on April 26, 2008.

The limitations period is statutorily tolled for "[t]he 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." 28 U.S.C. § 2244(d)(2).Petitioner filed a state habeas petition on March 21, 2008, thirty six (36) days before the one-year federal limitations period expired. On February 15, 2012, the state habeas court denied his petition, and he had thirty (30) days to file a timely CPC application and notice of appeal. See O.C.G.A. § 9-14-52(b). Petitioner missed this thirty-day deadline, (see [8-3]), and the federal limitations period began to run again on March 16, 2012, the end of that thirty-day period.⁵ The Court agrees with the Magistrate's determination that, because Petitioner had thirty six (36) days remaining on the one-year federal limitations period, the federal limitations period expired on April 23, 2012.⁶

The Supreme Court has held that the AEDPA limitations period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (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," although "[t]hediligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. at 649, 653 (citation and internal quotations omitted); see Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) ("[E]quitable tolling is an extraordinary remedy, [and] it is limited to rare and exceptional circumstances and typically applied sparingly.").

The Magistrate determined that Petitioner provided only an "unsupported allegation of a single, much-delayed inquiry regarding the status of Petitioner's state habeas petition," which did not establish reasonable efforts to timely file or reasonable diligence warranting equitable tolling. (R&R at 10). He also found that Petitioner did not file a motion to set aside the state habeas court's order, as instructed by the Georgia Supreme Court, so that he might then file a timely appeal from that order. (Id. at 10). Petitioner repeats his argument that he was "not notified of the final order of state habeas petition that was denied on February 15, 2012." (Obj. at 1-2). He also argues that he wrote to the...