Opinion
CV420-138
02-23-2023
DWIGHT DAVID MASSEY, Petitioner, v. WARDEN EDWARD PHILBIN, Respondent.
ORDER
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT JUDGE
Before the Court is the Magistrate Judge's January 6, 2023, Report and Recommendation (Doc. 14), to which Petitioner Dwight David Massey has filed an objection (Doc. 15) . After a careful review of the record, Petitioner's objections (Doc. 15) are OVERRULED, and the report and recommendation (Doc. 14) is ADOPTED as the Court's opinion in this case.
The Court reviews de novo a magistrate judge's findings to which a party objects, and the Court reviews for clear error the portions of a report and recommendation to which a party does not object. 28 U.S.C. § 636(b)(1); see Merchant v. Nationwide Recovery Serv., Inc., 440 F.Supp.3d 1369, 1371 (N.D.Ga. 2020) (outlining the standard of review for report and recommendations (citing Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006) (per curiam))).
Respondent moved to dismiss Petitioner's 28 U.S.C. § 2254 petition as untimely. (Doc. 9.) The Magistrate Judge recommended that Respondent's motion be granted, as the one-year statute of limitations for him to file a federal habeas petition ran out on October 13, 2011. (Doc. 14 at 5.) The Magistrate Judge also concluded that Petitioner asserted no meritorious basis for equitable tolling or "actual innocence." (Id. at 6-10.) Petitioner does not explicitly object to any portion of the Magistrate Judge's analysis. (See generally Doc. 15.) Instead, he refers to the Chief Justice of the Georgia Supreme Court's order declaring a statewide judicial emergency due to the COVID-19 pandemic, which tolled state statutes of limitations. (See id. at 1-2.) That order could not, however, affect the statute of limitations under federal law. See 28 U.S.C. § 2244(d). Moreover, as this Court has recognized, the tolling order "does not reset [a] period of limitation," even under state law. Kennedy v. S. Univ., No. 4:21-cv-172, 2022 WL 628541, at *5 (S.D. Ga. Mar. 3, 2022) (internal quotation marks and citation omitted). Even assuming some tangential relevance to Petitioner's petition, therefore, the judicial emergency order could not conceivably affect the limitations period which expired in 2011. Petitioner's objections are, therefore, OVERRULED. (Doc. 15.)
In summary, Petitioner does not dispute the Magistrate Judge's calculation of the date upon which his state-court judgment became final or the date upon which § 2244(d)'s one-year clock expired. His petition is, therefore, untimely. Neither his original petition, as the Magistrate Judge concluded, nor his objection, as discussed above, allege any fact sufficient to avoid the time bar. Accordingly, Respondent's motion to dismiss is GRANTED (Doc. 9), and Petitioner's 28 U.S.C. § 2254 petition is DISMISSED (Doc. 1).
Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant"). The Clerk of Court is DIRECTED to close this case.
SO ORDERED.