Mitchell v. Ward
| Decision Date | 26 August 2022 |
| Docket Number | CV 421-227 |
| Parties | JAMES MITCHELL, Petitioner, v. TIMOTHY C. WARD, Commissioner, Georgia Department of Corrections, Respondent. |
| Court | U.S. District Court — Southern District of Georgia |
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner brings the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is currently before the Court on Respondent's motion to dismiss the petition as untimely, (doc. no. 10), which Petitioner opposes, (doc. no. 14). For the reasons set forth below, the Court REPORTS and RECOMMENDS Respondent's motion to dismiss be GRANTED, (doc. no. 10), this petition be DISMISSED as untimely, and a final judgment be ENTERED in favor of Respondent.
In 2009, a jury in the Superior Court of Chatham County Georgia, convicted Petitioner of felony murder, aggravated assault, and two counts of possession of a firearm during the commission of a felony, and the trial court sentenced Petitioner to life plus fifteen years in prison. (Doc. no. 1 p. 1.) The Georgia Supreme Court affirmed Petitioner's conviction on February 6, 2012. Mitchell v. State, 722 S.E.2d 705, 708 (2012). Petitioner did not pursue any additional direct appeal proceedings. (Doc. no. 1, p. 2.)
Petitioner filed three state petitions for a writ of habeas corpus. He filed his first state petition in the Superior Court of Ware County on October 24, 2012, which was transferred to the Superior Court of Macon County. The Court held an evidentiary hearing on June 30, 2014, and dismissed the petition on February 13, 2015. (Doc. no. 1, pp. 3, 6; doc. no. 21-8, pp. 125.) In his federal petition, Petitioner first writes he did not appeal the denial of his first state petition, but then writes the Georgia Supreme Court denied him a certificate of probable cause (“CPC”) for this first petition, (id. at 5, 8). From the unopposed record provided, it appears Petitioner did not attempt an appeal for his first state petition. (Doc. no. 10-1, p. 2.)
Petitioner filed his second state petition in the Superior Court of Mitchell County on September 27, 2016, which was dismissed on October 11, 2016. (Doc. 11-1, p. 35; doc. no. 1, p. 4.) Petitioner then applied for a CPC, but he withdrew his application on June 15, 2018. (Doc. 11-1, p. 26.)
Through counsel, Petitioner filed his third and final state petition in the Superior Court of Chatham County on July 18, 2018, which was transferred to the Superior Court of Mitchell County. (Doc. no. 1, pp. 4-5; doc. no. 11-2, p. 1.) The Court held an evidentiary hearing on December 9, 2019, and dismissed the petition on February 18, 2020. (Doc. nos. 11-1, 11-3.) The Georgia Supreme Court denied Petitioner a CPC on Augusta 24, 2020. (Doc. no. 11-4.)
Petitioner, represented by the same counsel,[1] filed the instant petition on August 10, 2021. (See doc. no. 1.) Petitioner raises several claims for relief based on alleged prosecutorial misconduct, newly discovered evidence, and ineffective assistance of counsel.[2] (See id.) Respondent filed a motion to dismiss on February 14, 2022. (Doc. no. 10.) In response to the motion to dismiss, Petitioner states he “does not disagree with the procedural history as recited . . . and incorporates said history here by reference.” (Doc. no. 14, p. 1.) Petitioner argues his petition should not be dismissed despite its untimeliness because he qualifies for the actual innocence exception due to a Brady violation and out-of-court statements by Donald Robinson and Vincent Brown. (See generally doc. no. 14.) In light of Petitioner's argument, the Court ordered Respondent to supplement the record with (1) Petitioner's complete trial transcript; and (2) evidence of the Brady violation. (Doc. no. 15.) Respondent submitted a brief and the requested documents on June 27, 2022. (Doc. nos. 19-21 to 21.) The Court then gave Petitioner thirty days to file a reply brief and any further evidence supporting his claims, but Petitioner did not do so by the deadline.
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d), there is a one-year statute of limitations for § 2254 motions that runs from the latest of:
Under § 2244(d)(1)(A), a judgment becomes final upon “the conclusion of direct review or the expiration of the time for seeking such review.” Here, the Georgia Supreme Court affirmed Petitioner's conviction on February 6, 2012. Mitchell, 722 S.E.2d at 708. Petitioner did not seek a writ of certiorari from the United States Supreme Court, and his conviction therefore became final ninety days later on May 7, 2012. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (); see also Phillips v. Warden, 908 F.3d 667, 671 (11th Cir. 2018) (same).
Petitioner then had one year to file his federal petition or take other action to toll the one-year limitations period. The Court recognizes that, pursuant to 28 U.S.C. § 2244(d)(2), the one-year statute of limitations does not run while a properly filed application for state post-conviction relief or other collateral review is pending in state court. Cramer v. Sec'y, Dep't of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006). Petitioner did not file any request for post-conviction relief until October 24, 2012, meaning 170 days of his one-year AEDPA statute of limitations had already expired. (Doc. no. 1, p. 3.) AEDPA's one-year clock was tolled throughout the first state habeas corpus proceedings, including the time during which Petitioner was able to seek a CPC from the Georgia Supreme Court. Thus, the tolling resulting from Petitioner's first state habeas proceeding ended on March 16, 2015,[3] the thirty-day deadline by which the CPC application was due to the Georgia Supreme Court pursuant to O.C.G.A. § 9-14-52(b).
Despite 170 days of Petitioner's one-year statute of limitations having elapsed prior to filing his first petition, Petitioner then waited 561 days from the conclusion of his first state habeas proceedings on March 16, 2015, to file his second state petition on September 27, 2016. Therefore, AEDPA's one-year statute of limitations had already run when Petitioner filed his second and third state petitions, so those proceedings had no tolling effect. Because Petitioner filed his federal petition in August 2021, well after the expiration of the one-year statute of limitations, his current federal challenge is time-barred and should be dismissed.
An otherwise untimely § 2254 petition may be considered if a petitioner can demonstrate that a fundamental miscarriage of justice has occurred.[4] A “fundamental miscarriage of justice” has occurred where “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)); see also Wyzykowski v. Dep't of Corr., 226 F.3d 1213, 1218-19 (11th Cir. 2000). The actual innocence exception “is exceedingly narrow in scope,” and a time-barred petitioner seeking to invoke it must be able “(1) to present ‘new reliable evidence . . . that was not presented at trial,' and (2) to show ‘that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt' in light of the new evidence.” Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012) (citations omitted). As the Supreme Court emphasized, “The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner].'” McQuiggin, 569 U.S. at 394-95.
Petitioner presents three pieces of evidence that, at least in combination, he believes would have led no reasonable juror to conviction: (1) an already established Brady violation undermining witness Isaac Fitzgerald's testimony; (2) witness Donald Robinson's post-trial recantation; and (3) non-witness Vincent Brown's ungiven testimony. (See doc. no. 14, pp. 23.)
Petitioner was indicted, tried, and convicted along with a co-defendant Jarnard Williams. Williams v. State, 722 S.E.2d 847, 848 (2012). Like Petitioner, Williams's conviction was upheld on appeal, id., and Williams subsequently filed a ...
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