WILLIAM M. ACKER, Jr., District Judge.
This is an action on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Thaddeus Cordelro Ford, a state prisoner proceeding pro se. (Doc. 1). The magistrate judge entered a report and recommendation on January 26, 2016, recommending Ford's § 2254 petition be denied as barred by the statute of limitations provided by 28 U.S.C. § 2244(d)(1)(A) and procedurally defaulted. (Doc. 6). Furthermore, in accordance with Rule 11 of the Rules Governing Section 2254 Cases, the magistrate judge recommended a certificate of appealability be denied. (Id.). Ford has filed objections to the magistrate judge's report and recommendation. (Doc. 9). For the reasons discussed below, those objections are due to be overruled.
As set out in the magistrate judge's report and recommendation:
(Doc. 6 at 1-2) (internal citations and footnote omitted).
The magistrate judge commenced the limitations period from § 2244(d)(1)(A), the date on which Ford's conviction became final by the conclusion of direct review or the expiration of time to seek that review, rather than any of the other three possibilities provided by § 2244(d), including § 2244(d)(1)(D), which provides for commencement of the limitations period from the date on which the factual predicate of a petitioner's claim could have been discovered through the exercise of due diligence. (Id. at 3-4). The magistrate judge specifically noted § 2244(d)(1)(D) did not trigger the limitations period because while Ford alleges he did not learn of his 20-year split sentence until his release from incarceration after serving the original custodial portions of his sentences, he alleges no facts that would indicate this information could not have been known to him through the exercise of reasonable diligence. (Id. at 3).
In his objections, Ford argues he had no reason to question or inquire as to his sentences before the revocation of his probation because his attorney told him that he was to serve only a 10-year split sentence and documentation he received while incarcerated reflected the same. (Doc. 9). These bare allegations, unsupported by any documentation or detail that might lend them credence, fail to demonstrate the diligence necessary to warrant commencement of the limitations period from § 2244(d)(1)(D) rather than § 2244(d)(1)(A), justify equitable tolling of the limitations period, or show cause sufficient to excuse procedural default. See Holland v. Florida, 560 U.S. 631, 649 (2010) (petitioner bears burden of showing he has been pursuing his rights diligently and some extraordinary circumstance prevented his timely filing); Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (petitioner must show cause and prejudice to overcome procedural default of claim). This is particularly true given the guilty pleas signed by Ford unequivocally state the district attorney would recommend a 20-year split sentence in connection with the robbery charge, to be served concurrently with a recommended 10-year split sentence in connection with the assault charge. See State v. Ford, 47-CC-001578.00 at Doc. 8 at 5-6; State v. Ford, 47-CC-2006-005867.00 at Doc. 10 at 4-5. For these reasons, Ford's objections to the magistrate judge's report and recommendation are
After careful consideration of the record in this case and the magistrate judge's report, the court
A final judgment will be entered.