French v. Carter

• Decision Date: 15 February 2012
• Docket Number: Case No. CV410–141.
• Parties: Eugene FRENCH, Petitioner, v. Alan CARTER, Respondent.
• Court: U.S. District Court — Southern District of Georgia

828 F.Supp.2d 1309

Eugene FRENCH, Petitioner,

v.Alan CARTER, Respondent.

Case No. CV410–141.

United States District Court,S.D. Georgia,Savannah Division.

Feb. 15, 2012.

Eugene French, Abbeville, GA, pro se.

Amy E. Hawkins Morelli, Paula K. Smith, Dept. of Law GA Attorney General's Office, Atlanta, GA, for Respondent.

ORDER

GEORGE R. SMITH, United States Magistrate Judge.

Convicted in state court for aggravated child molestation, French v. State, 288 Ga.App. 775, 655 S.E.2d 224 (2007), Eugene French petitions this Court for 28 U.S.C. § 2254 habeas relief, contending that his lawyer provided him with ineffective assistance of counsel (IAC). Doc. 1. As it did once before, doc. 8, the State moves to dismiss the petition as untimely. Doc. 45. The petition is untimely but equitable tolling applies. And further briefing is required.

Distilled from his multiple submissions, docs. 1, 5, 15, 16, 39, 53 & 55, French's core argument is this: All of the evidence against him came from the testimony of two women—one his daughter (B.F.), the other her girlhood friend (A.S.)—about his molestation of them when they were 10 or 11 (they cannot remember for sure) years old. Both testified about it some eight or nine years after the fact, neither had contemporaneously complained when it happened, ¹ and no one could even say with reasonable precision when he committed the crimes. Doc. 9–5 at 97–100 (February 14, 2005 indictment: “between January 1, 1997 and December 31, 1999.”); see also doc. 9–7 at 16 (June 28–29, 2006 trial transcript).

French, both victims claimed, anally penetrated them on different nights in his home, but while other people slept in nearby rooms. Yet, neither child cried out, and B.F. testified that she was not awakened by her panties being removed but awoke only after penetration. Nor did she claim to have been drugged beforehand.

French, a career military veteran with no criminal record, testified that his vindictive “ex” (his daughter's mother) had been gunning for him because of child support and other issues, and had put B.F. up to it. (He is unclear about A.S.) He also claimed that B.F. had once falsely accused him of a felony (kidnapping her), but the trial judge excluded that evidence. The French appellate court declined to reach the merits of the false-kidnapping charge because defense counsel failed to perfect the record, French, 288 Ga.App. at 777, 655 S.E.2d 224, though it “nevertheless note[d] that [t]he state of a witness's feelings toward the parties and his relationship to them may always be proved for the consideration of the jury. OCGA § 24–9–68.” Id. French contends that the outcome here would have been different but for that IAC-level error. He only obliquely complains about certain record photos of his penis that were also excluded at trial and not raised on appeal— French does not mention them.

French raised these issues before the state habeas court. It simply ignored his penis photos issue. On the IAC claim, it recited counsel's generalized testimony that he did a competent job, then ruled that counsel did a competent job—without explaining why. French also raised many other issues, as he does here. As this Court was recently reminded in Walker v. United States, 438 Fed.Appx. 855, 856 (11th Cir.2011), it is bound by Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc), to reach all habeas issues raised before it, even at the expense of brevity.

I. TIMELINESS

The Court's first Report and Recommendation (R & R) applied 28 U.S.C. § 2244(d)(1)(A)'s one year limitations period to grant the state's first motion to dismiss. Doc. 17, reported at 2011 WL 675129. That one-year clock ticks from the moment a state court conviction becomes final. It is stopped while the defendant litigates his state collateral appeal (state habeas) remedies, i.e., during the period a “properly filed” petition for state relief is pending. Wall v. Kholi, ––– U.S. ––––, 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011) (quoting § 2244(d)(2)). But states impose deadlines for filing such things, so when a prisoner misses one of those deadlines the federal clock keeps ticking and is stopped only when he makes his next filing. Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001). When the state collateral appeal process ends, the defendant has whatever remains of that 365–day period to file his § 2254 petition. Gaps anywhere along the way, then, can be fatal. See, e.g., Hackett v. Parker, 2012 WL 380354 at *4 (N.D.Okla. Feb. 6, 2012).

Here the state focused on just such a gap. It insisted that French's state court conviction became final after the French opinion issued. French was issued on December 7, 2007, and state appellate rules gave French another 10 days to further appeal, but French did not do so. The state concluded that he thus had until December 17, 2008 to file his state habeas petition. Since he did not file it until December 22, 2008, he used up his 365 days before he even got to this Court. Doc. 8. This Court agreed, but noted

that in the state habeas court French filed, possibly simultaneously with his state habeas petition, an [ in forma pauperis (IFP)] motion that was marked by that court's clerk “RECEIVED DEC 01 2008.” Yet, on the same page, the IFP motion is marked “FILED IN OFFICE DEC 22, 2008.” This Court has based its ruling above on the latter date, which is the date the State says his petition was filed. But if in fact French submitted his state habeas petition for filing at the same time he filed his IFP motion, then if his state habeas petition is deemed filed on December 1, 2008, his § 2254 petition here would be timely.

2011 WL 675129 at *2. Still,

French seem[ed] to accept the State's contention that his state habeas petition was not filed until December 22, 2008, for he [did] not challenge that date or make any reference to the “DEC 01 2008” date stamp on his IFP motion. So, [the undersigned concluded,] the date discrepancy issue is waived. See Davis–O'Brien v. Astrue, 415 Fed.Appx. 137, 139–40 (11th Cir.2011) (claims not raised in district court are waived on appeal).

Id.

At first the district judge agreed and thus accepted the R & R, doc. docs. 27–29, reported at 2011 WL 841337, but then vacated that ruling upon French's Fed.R.Civ.P. 72(b) Objection, docs. 26 & 30, then rejected the R & R and denied the dismissal motion. Doc. 31. The district judge “found that the state habeas court clerk's office received both of French's filings [his state habeas petition and accompanying IFP motion] on December 1, 2008—within the one year limit.” Doc. 36 at 1, reported at 2011 WL 1790778. The state moved for reconsideration. Doc. 33. As described by the district judge, French's warden asserted that

his office, and not the clerk's office, stamped “Received Dec 01 2008” onto French's IFP application to note when it received the document from French to mail to the [State Habeas] Court.² Respondent [thus] argues that French's case must be dismissed because his state habeas petition did not reach the [state habeas court] clerk's office until after the one year period expired.

In other words, Respondent argues that French's case must be dismissed because Respondent sat on French's habeas petition for the final seventeen (17) days of French's one year period before forwarding it to the court. This conflict of interest is one reason the federal government's prisoner mailbox rule makes the date on which a prisoner delivers his filing to prison authorities for mailing the operative filing date. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).Doc. 36 at 1 (footnote added; emphasis original and added).

Nevertheless, the district judge was prepared to rule in the state's favor. Georgia, he explained, does not follow the federal mailbox rule, so French's state habeas petition was filed on “ ‘the date upon which the paper [was] handed to the [state habeas court] clerk to be filed.’ Lavan v. Philips, 184 Ga.App. 573, 574, 362 S.E.2d 138 (1987).” Doc. 36 at 1; see also Hall v. Oubre, 2010 WL 5652769 at *3 (S.D.Ga. Dec. 30, 2010) (“the ‘mailbox rule’ does not apply to the initial filing of state habeas petitions in Georgia.”). Yet, the judge denied the reconsideration motion—only because the warden had failed to “attach an affidavit or personally sign his motion. [The warden's] motion would require the Court to give dispositive weight to a factual representation made by [his] attorneys one month after the Court ruled on this matter. The Court will not overturn its ruling on such a showing.” Doc. 36 at 2.

That was a cue for the state to in fact supply the missing affidavit. Alas, it did not. Meanwhile, to move the case along, the district judge directed it to respond to French's petition on the merits. Id., reported at 2011 WL 1558124 at *2. It did. Doc. 37–1. But in its response it continued to insist “that Petitioner filed a state habeas corpus petition on December 22, 2008, after the one-year federal limitations already had expired. (Resp. Ex. 2.)” Id. at 1; see also id. at 2 (“Respondent respectfully maintains that the petition was untimely filed.”).

Since the state obviously intended to pursue the untimeliness issue on appeal, the undersigned directed it to file all evidence (affidavits, etc.) supporting its assertion that French untimely filed his 2254 petition. Doc. 41, reported at 2011 WL 2491595. The state then tendered the missing affidavit. Doc. 42–1. But it did not then renew its untimeliness-based, motion to dismiss. So, the Court again nudged it along. Doc. 44 (Order directing it to renew its motion). The state then renewed its dismissal motion, doc. 45, which French opposes. Doc. 50. He has also filed, and the Court denies, an incomprehensible motion to strike. Doc. 51.

The state now reiterates its earlier argument. Doc. 45. It again insists that French failed to stop the clock when he failed to further litigate French, as required by Georgia rules, within 10...