Opinion
Civil Action 5:21-cv-00087-TES-MSH
01-21-2022
WASEEM DAKER, Plaintiff, v. Clerk JUANITA M. LAIDLER, Chief Deputy Clerk CRYSTAL CARTER, and MACON COUNTY SUPERIOR COURT, Defendants.
ORDER
TILMAN E. SELF, III, JUDGE.
In this case, the United States Magistrate Judge issued his Report and Recommendation (“R&R”) [Doc. 3] on October 6, 2021. [Doc. 3, p. 13]. By way of an extended deadline so that he could obtain certain court records judicially noticed in the R&R, pro se Plaintiff Waseem Daker had until November 8, 2021, to file an objection with the Court. See generally [Doc. 4] in connection with [Doc. 5, p. 1]; see also [Doc. 6, p. 1]. So, when the Court hadn't received anything from Daker despite the fact that about a week had passed since the extended deadline expired, it reviewed the R&R for clear error and filed an Order [Doc. 6] on November 16, 2021, that adopted the R&R and dismissed Daker's Complaint [Doc. 1] without prejudice. [Doc. 6, p. 1]. However, eight days later, on November 24, 2021, the Court received Daker's Objection [Doc. 8]. 1
Even though the Court didn't receive Daker's Objection until November 24, 2021, Daker supposedly completed and mailed it some 16 days earlier on November 8, 2021— conveniently, on the last day of the extended objection period. [Doc. 8, p. 25]; see also [Doc. 5, p.1] in connection with [Doc. 6, p. 1 (citing Fed.R.Civ.P. 6(a)(1), (d))]. Along with his Objection, Daker submitted two additional motions: a Motion for Access to Case Authorities [Doc. 9] and a Motion for Copies of Records Judicially Noticed [Doc. 10].
“Under the ‘prison mailbox rule,' a pro se prisoner's court filing is deemed filed on the date it is delivered to prison authorities for mailing.” Daker v. Comm'r, Ga. Dep't of Corrs., 820 F.3d 1278, 1286 (1th Cir. 2016) (quoting Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009)). “Absent evidence to the contrary, ” we “assume that [the prisoner's filing] was delivered to prison authorities the day he signed it.” Daker, 820 F.3d at 1286 (quoting Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001)).
Having received these filings, the Court filed a second Order on November 30, 2021. [Doc. 11]. This second Order vacated the Court's previous Order that adopted the R&R and the subsequent Judgment [Doc. 7] closing this case. See [Doc. 11, p. 1]. In its second Order, the Court also informed Daker that his Objection would be taken “under advisement.” [Id.]. But, on December 10, 2021, the Court's second Order was returned as “not deliverable.” [Doc. 12, p. 1]. In other words, Daker never knew that the Court had already taken the necessary steps on its own to reopen this case. Given that the Court has already done what Daker requests via his pending Motion to Vacate and Reconsider [Doc. 13], the Court DENIES it as moot. 2
The Clerk of Court is DIRECTED to send Daker another copy of the Court's Order Reopening Case [Doc. 11] as well as a copy of the docket sheet.
Thus, all that remains for the Court to consider are Daker's Motion for Access to Case Authorities, his Motion for Copies of Records Judicially Noticed, and the R&R anew.
First, Daker's Motion for Access to Case Authorities [Doc. 9] is DENIED. The Court will not provide Daker a copy of each authority it relies upon in support of its decisions in this, or any other of Daker's cases. As a serial litigator, Daker has proven more than adapt at legal research. He can clearly find the cases and legal authorities he wants to find.
Next, Daker's Motion for Copies of Records Judicially Notice [Doc. 10] is GRANTED. In heeding the Eleventh Circuit's word of caution regarding judicial notice, the Court will include copies of the documents judicially noticed by the magistrate judge as exhibits to this Order. Paez v. Sec'y Dep't of Corrs., 947 F.3d 649, 651-53 (11th Cir. 2020).
So that Daker can have an opportunity to review these documents and respond accordingly, the Court will allow him 21 days from the date of this Order to restate and resubmit any objection—limited to only 10 pages in length. Daker's previous Objection will not, in any way, be considered. See generally [Doc. 8]. And, Daker may not incorporate any portion of his previous Objection by reference in an attempt to circumvent the 10 page limitation. Upon timely receipt of Daker's restated objection, the 3 Court will consider it. Daker should not anticipate that an extension of time will be provided for compliance with the deadline set in this Order.
SO ORDERED. 4
EXIHIBIT
IN THE SUPERIOR COURT OF LOWDNES COUNTY STATE OF GEORGIA
WASEEM DAKER, GDC #901373, Petitioner,
V.
SHAWN EMMONS, WARDEN, Respondent.
CIVIL ACTION No. 2019-CV-0161
HABEAS CORPUS
Paula K. Smith
Senior Assistant Attorney General
Georgia Department of Law
ORDER DISMISSING PETITION AS UNTIMELY AND FOR FAILURE TO STATE CLAIMS FOR RELIEF
JAMES E. HARDY, Judge Southern Judicial Circuit
This case came before the Court for hearing on April 11, 2019, on the warden's motion to dismiss this petition as untimely under the four-year limitations provision of O.C.G.A. § 9-14-42(c) and for failure to state cognizable claims for relief in habeas corpus.
At the start of that hearing, the Court denied Petitioner's motion to transfer this case back to Cobb County, where it was pending from 2013 until 2018.
Based on the record as established in this case at the April 2019 hearing, the Court finds that grounds 1-5 and 7 of the petition and grounds 1-8 and 12-14 of the April 2019 amendment, which challenge Petitioner's expired Cobb County convictions for two counts of aggravated stalking, are untimely and dismissed on this basis. Ground 6 of the petition and grounds 9-11 of the amendment allege violations of a state statute, and these grounds are 1 dismissed for failure to state claims cognizable in habeas corpus. Finally, grounds 8-10 of the petition, which allege that Petitioner's right of access to courts was violated while he was housed at the Diagnostic and Classification Prison in Butts County, do not state claims for relief in habeas corpus.
I. Procedural History
On February 7, 2013, Petitioner filed this habeas corpus petition ("the petition") in the Superior Court of Butts County, where he was housed at the time, to challenge his fully expired Cobb County convictions for two counts of aggravated stalking, arising from a September 1996 jury trial and affirmed on direct appeal in Daker v. State, 243 Ga.App. 848, 533 S.E.2d 393 (2000), cert, denied, 534 U.S. 1093 (2002). He raised ten grounds for relief, seven challenging his expired aggravated stalking convictions and three alleging that his right of access to courts was being violated.
The sentences for these aggravated stalking convictions expired in 2005 and Petitioner was released from prison. See Daker v. State, 285 Ga. 735, 736, 683 S.E.2d 594 (2009) ("In 2005, while the instant habeas corpus action was pending, Daker completed his sentence for the Cobb County conviction and was released from prison.").
This is not his first petition challenging these aggravated stalking convictions. See, e.g., Daker v. Williams, 279 Ga. 782, 621 S.E.2d 449 (2005) (affirming the habeas corpus court's denial of relief).
In March 2013, the warden in Butts County filed an answer and moved 2 to dismiss the petition as untimely, as successive and for failure to state claims for relief.
In March 2013, the Butts County habeas court granted Petitioner's motion - over the warden's opposition - to transfer this case to the Superior Court of Cobb County. This case was eventually transferred to Tattnall County in May 2018, then to Macon County in July 2018, and then to this Court in January 2019 and set for hearing on April 11, 2019.
On April 5, 2019, Petitioner filed an amendment to the petition ("the amendment") in which he raised 14 grounds. A copy of the amendment was provided to the warden at the start of the hearing on April 11th.
A party is not required to file an amended answer to an amended petition, and the claims in the amended petition are "'deemed denied or avoided' even in the absence of an answer." Jefferson v. Zant, 263 Ga. 316, 317, 431 S.E.2d 110 (1993).
II. The Grounds for Relief
A. The Grounds Challenging the Convictions
In grounds 1-7 of the petition, Petitioner challenges his aggravated stalking convictions. In grounds 1-5 he alleges that the State withheld exculpatory evidence in alleged violation of Brady v. Maryland, 373 U.S. 83 (1963), and that he first became aware of this information in 2012 as part of the discovery provided to him in connection with his then- pending murder 3 case. In ground 6 he reasserts a claim decided on direct appeal about the seizure of "private papers" that were admitted at the 1996 trial. In ground 7 he alleges that the aggravated stalking convictions are "void" due to the "vacatur of special conditions of bond" before he allegedly violated the bond conditions.
It appears that Petitioner is currently incarcerated on Cobb County convictions for malice murder, burglary, false imprisonment, aggravated battery, and criminal attempt to commit aggravated stalking, arising from a jury trial in 2012 and affirmed on direct appeal in Daker v. State, 300 Ga. 74, 792 S.E.2d 382 (2016), cert denied, U.S., 138 S.Ct. 151 (2017).
Specifically, Petitioner alleges in the petition that:
(1) the State violated Brady when it did not provide him with a recorded 1996 interview that would have impeached the victim;
(2) the State violated Brady when it did not provide him with a recorded interview of Jonathan Wicks about whether the victim's roommate had a hammer next to her bed;
(3) the State violated Brady when it did not provide him with a recorded interview of Darren Wells about whether Petitioner had a sexual relationship with the victim;
(4) the State violated Brady when it did not provide him with a letter from the victim about her whereabouts in February 1995;
(5) the State violated Brady when it did not provide him with a letter4
seized from his own home about whether he had a sexual relationship with the victim;
(6) the trial court "erred" in admitting "private papers" improperly seized under O.C.G.A. §17-5-21 and Brodgon v. State, 287 Ga. 528, 697 S.E.2d 211 (2010); and
(7) his aggravated stalking convictions are "void" because of "the vacatur of the special conditions of bond" in November 2001.
In the April 2019 amendment, Petitioner reasserts some of the same issues as well as new claims. The claims in the amendment are as follows:
(1) his convictions and sentences on both aggravated stalking counts "are void because they are multiplicitous under the 'unit of prosecution' double jeopardy test" of Blockburger v. United States, 284 U.S. 299 (1932), and State u. Marlow, 227 Ga. 383, 589 S.E.2d 69 (2003) (amendment, p. 1);
(2) his convictions and sentences on both aggravated stalking counts "are void" because they allegedly violate the Georgia double jeopardy protections in O.C.G.A. §§ 16-1-6 and 16-1-7 (amendment, p. 17);
(3) his convictions and sentences on both aggravated stalking counts "are void" because they allegedly violate double jeopardy under the Blockburger test (amendment, p. 24);
(4) his convictions and sentences on both aggravated stalking counts "are void" because the statutes defining stalking (O.C.G.A. § 16-5-90) and5
aggravated stalking (O.C.G.A. § 16-5-91) are unconstitutional under the "void for vagueness" doctrine because they do not specify "what is the 'allowable unit of prosecution'" (amendment, p. 24);
(5) his convictions and sentences on both aggravated stalking counts "are void" because the statutes defining stalking (O.C.G.A. § 16-5-90) and aggravated stalking (O.C.G.A. § 16-5-91) are unconstitutional under the "void for vagueness" doctrine because they do not sufficiently define "the terms 'course of conduct' and 'pattern of behavior'" (amendment, p. 30);
(6) his conviction and sentence on the count 1 aggravated stalking are "void" due to the "failure to allege the minimum number of predicate acts to support a stalking 'pattern' or course of conduct" (amendment, p. 38);
(7) his conviction and sentence on the count 2 aggravated stalking are "void" due to the "failure to allege the minimum number of predicate acts to support a stalking 'pattern' or course of conduct" (amendment, p. 41);
(8) his convictions are "void due to the November 19, 2001 repeal of the order which he is alleged to have violated" (amendment, p. 42);
(9) "the trial court erred in admitting into evidence Defendant's 'private papers," State's Exhibit S-32" (one of two handwritten letters found in his trashcan), based on the "intervening change" in the law announced in Brogdon v. State, 287 Ga. 528, 697 S.E.2d 211 (2010), which purportedly6
overruled the interpretation in Sears v. State, 262 Ga. 802, 426 S.E.2d 553 (1993), of the term "private papers" in O.C.G.A. § 17-5-21 (amendment, p. 46);
(10) "the trial court erred in admitting into evidence Defendant's 'private papers," State's Exhibit S-33" (the other handwritten letter found in his trashcan), based on Brogdon v. State (amendment, p. 48);
(11) "the trial court erred in admitting into evidence Defendant's 'private papers," State's Exhibit S-124" (a piece of paper with the victim's address and phone number written on it) (amendment, p. 48);
(12) "the prosecutor failed to disclose impeaching and exculpatory evidence," i.e., detective McEntyre's interviews of the victim in October 1995, the detective's interview of Jonathan Wicks prior to the 1996 trial, the detective's interview of Darren Wells in November 1995, a letter the victim gave police in September 1995, a letter seized from Petitioner's home in October 1995, and the victim's phone records from October 1995 (amendment, P- 48);
(14) [sic] O.C.G.A. § 17-1-4, the statute governing "Vacation of judgments, verdicts, rules, or orders obtained by perjury" is unconstitutional (amendment, p. 54); and
(14) Petitioner was denied "his constitutional right to appellate counsel on his direct appeal of his conviction" (amendment, p. 59).7 O.C.G.A. § 9-14-42(c), enacted by Ga. L. 2004, p. 917, provides in pertinent part:
Any action brought pursuant to this article shall be filed within one year in the case of a misdemeanor, except as otherwise provided in Code Section 40-13-33, or within four years in the case of a felony, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, from:
(1) The judgment of conviction becoming final by the conclusion of direct review or the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have until July 1, 2005, in the case of a misdemeanor or until July 1, 2008, in the case of a felony to bring an action pursuant to this Code section;
* * *
(3) The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review; or
(4) The date on which the facts supporting the claims presented could have been discovered through the exercise of due diligence.
As to subsection (1), prior to the enactment of O.C.G.A. § 9-14-42(c), Georgia law recognized that a conviction is "final" when direct review, including the time to file a petition for a writ of certiorari to the United States Supreme Court, has concluded or where the time for seeking further appellate review has expired. See, e.g., Turpin v. Todd, 268 Ga. 820, 830(3), 493 S.E.2d 900 (1997); 8 Taylor v. State, 262 Ga. 584, 586, 422 S.E.2d 430 (1992).
Petitioner's aggravated stalking convictions were affirmed by the Court of Appeals in April 2000, and the United States Supreme Court denied certiorari review in 2002. His convictions were "final" when the limitations period went into effect on July 1, 2004, but he did not file this petition on or before July 1, 2008. Grounds 1-5 and 7 of the petition and grounds 1-8 and 12-14 of the amendment are untimely under subsection (1). They were not raised in a petition filed on or before July 1, 2008.
Petitioner claims there has been an intervening change in the law since his direct appeal in 2002 as to how "private papers" are defined under O.C.G.A. § 17-5-21 for purposes of whether they are exempt from seizure under a search warrant. This purported change in state law was announced in 2010 in Brodgon v. State, and he filed this petition within four years of when Brodgon was decided. However, this purported change in state law does not make these claims cognizable in habeas corpus.
Brogdon v. State did not recognize or announce a new constitutional right that would apply retroactively to a case on collateral review, despite Petitioner's assertion that the search violated his rights under the state Constitution. See Abrams v. Laughlin, 304 Ga. 34, 36(2), 816 S.E.2d 26 (2018) (discussion of what may qualify as a "new right" under subsection 9 (c)(3)). Brodgon involved an interpretation of what constitutes "private papers" under O.C.G.A. § 17-5-21 for purposes of whether they are exempt from seizure under a search warrant. See Brogdon, 287 Ga. at 529(2). Alleged violations of state statutes are not cognizable in habeas corpus under O.C.G.A. § 9-14-42(a). See, e.g., Parker v. Abernathy, 253 Ga. 673, 324 S.E.2d 191 (1985). Thus, ground 6 of the petition and grounds 9-11 of the amendment are not cognizable in habeas corpus.
Finally, to the extent that Petitioner claims he now has "new facts" that he did not have prior to 2012 that would render his Brady claims timely under subsection (c)(4), these arguments are unavailing. He had the tools to have obtained the same information, once his aggravated stalking convictions became final, through the exercise of due diligence. Grounds 1-5 of the petition and ground 12 of the amendment were not filed within four years of the date on which the facts supporting them could have been discovered through due diligence. See Abrams v. Laughlin, 304 Ga. at 38(3) (discussion of subsection (c)(4)).
Petitioner contends that did not learn until 2012 that the State allegedly possessed, at the time of his 1996 trial, the tape recorded conversations, certain information about and from the victim, and a letter he himself wrote that he references in grounds 1-5 of the petition and ground 12 of the amendment. He ignores the fact that he could have obtained this same 10 information from the State's files under the Open Records Act once Petitioner's aggravated stalking convictions were final.
The Open Records Act provides for the inspection of government records. O.C.G.A. § 50-18-70. "Public disclosure is not required for records that are...Records of law enforcement, prosecution, or regulatory agencies in any pending investigation or prosecution of criminal or unlawful activity, other than initial police arrest reports and initial incident reports..." O.C.G.A. § 50-18-72(4) (emphasis added). However, "an investigation or prosecution shall no longer be deemed to be pending when all direct litigation involving such investigation and prosecution has become final or otherwise terminated..." Id. In other words, once the direct appeal has ended, investigatory files in criminal cases should be made available for public inspection, absent a statutory exception, such as an imminent retrial. See Parker v. Lee, 259 Ga. 195, 198, 378 S.E.2d 677 (1989); Napper v. Ga. Television Co., 156, 165, 356 S.E.2d 640 (1987).
Once Petitioner's criminal case ended in 2002 after his aggravated stalking convictions were affirmed and certiorari was denied, the prosecutor's file and other law enforcement files were open to review by members of the public under the Open Records Act. See Parker v. Lee, 259 Ga. at 195. From that date forward, Petitioner could have obtained any of the documents that 11 form the basis for grounds 1-5 of the petition and ground 12 of the amendment.
Thus, grounds 1-5 and 7 of the petition and grounds 1-8 and 12-14 of the amendment are dismissed as untimely. Ground 6 of the petition and grounds 9-11 of the amendment, alleging a change in how a state statute has been interpreted, are dismissed for failing to state claims cognizable in habeas corpus.
B. The Claims about Access to Courts
Grounds 8-10 of the petition, complaining about alleged violations of Petitioner's access to courts while he was incarcerated at the Diagnostic Prison when he filed the petition in February 2013, do not state claims that are cognizable in habeas corpus. They do not allege a violation of Petitioner's constitutional rights in the proceedings which resulted in his aggravated stalking conviction to fall within the scope of O.C.G.A. § 9-14-42(a). They are dismissed on this basis. 12
CONCLUSION
Wherefore, this petition as amended is dismissed as untimely and for failure to state claims for relief in habeas corpus.
If Petitioner desires to appeal this order, he must file an application for a certificate of probable cause to appeal with the Clerk of the Supreme Court of Georgia within thirty (30) days of the date this order is filed by the Lowndes Superior Court Clerk. He must also file a notice of appeal within the same thirty (30) day with the Clerk of the Superior Court of Lowndes County.
The Clerk is hereby dir4ected to provide a copy of this order to Petitioner, Respondent, and the office of the Attorney General of Georgia.
SO ORDERED, this 25th July, 2019. 13