Filed: Apr. 16, 2014
Latest Update: Apr. 16, 2014
Summary: OPINION AND ORDER WILLIAM S. DUFFEY, Jr., District Judge. This matter is before the Court on Magistrate Judge Janet F. King's Order and Final Report and Recommendation ("R&R") [15] on Petitioner James Anthony Dixon's federal habeas corpus Petition [1], Respondent Stan Sheppard's Motion to Dismiss the Petition as Untimely [9], and Respondent Sam Olens's Motion to Dismiss as an Improper Party Respondent [10]. I. BACKGROUND 1 In December, 2005, a Cobb County, Georgia, jury found Petitioner Ja
Summary: OPINION AND ORDER WILLIAM S. DUFFEY, Jr., District Judge. This matter is before the Court on Magistrate Judge Janet F. King's Order and Final Report and Recommendation ("R&R") [15] on Petitioner James Anthony Dixon's federal habeas corpus Petition [1], Respondent Stan Sheppard's Motion to Dismiss the Petition as Untimely [9], and Respondent Sam Olens's Motion to Dismiss as an Improper Party Respondent [10]. I. BACKGROUND 1 In December, 2005, a Cobb County, Georgia, jury found Petitioner Jam..
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OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Janet F. King's Order and Final Report and Recommendation ("R&R") [15] on Petitioner James Anthony Dixon's federal habeas corpus Petition [1], Respondent Stan Sheppard's Motion to Dismiss the Petition as Untimely [9], and Respondent Sam Olens's Motion to Dismiss as an Improper Party Respondent [10].
I. BACKGROUND1
In December, 2005, a Cobb County, Georgia, jury found Petitioner James Anthony Dixon ("Petitioner") guilty of malice murder, felony murder, and aggravated assault. The trial court sentenced Petitioner to life imprisonment for malice murder.2 Petitioner alleges that the trial court informed him that he had "a right to file any action for habeas corpus brought pursuant to law. It must be filed within four years. . . ."3
On April 28, 2009, the Georgia Supreme Court affirmed Petitioner's conviction and sentence. On March 9, 2011, Petitioner filed his state habeas petition in Richmond County, which the Superior Court of Richmond County denied. On September 9, 2013, the Georgia Supreme Court denied further review of Petitioner's state petition.
On July 18, 2013, Petitioner filed this pro se habeas Petition, pursuant to 28 U.S.C. § 2254. Petitioner, in seeking relief, alleges that the trial court incorrectly told him he had four years to file a habeas corpus petition, and that he is a level-four mental-health inmate. Petitioner contends that his circumstances require equitable tolling on his Petition, even though it was not timely filed. On November 12, 2013, Respondent Stan Sheppard ("Sheppard") moved to dismiss the Petition as untimely, and Respondent Sam Olens ("Olens") moved to be dismissed from this action as an improper party.
On January 22, 2014, the Magistrate Judge issued her R&R, recommending (i) that Sheppard's Motion to Dismiss Petition as Untimely be granted and the Petition be denied, because the Petition was not timely filed, and equitable tolling of the statute of limitations is not appropriate; and (ii) that a certificate of appealability not be issued.4
On February 18, 2014, Petitioner filed his objections to the R&R. Petitioner makes conclusory statements about his actual innocence in his objections. Petitioner did not object to the specific findings and recommendations in the R&R.5
II. DISCUSSION
A. Legal Standard
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). If no party has objected to the report and recommendation, a court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). Petitioner did not raise specific objections to any of the findings, conclusions, or recommendations in the R&R, and the Court reviews them for plain error.
B. Analysis
The Magistrate Judge determined that Petitioner's Petition was untimely filed, and that Petitioner did not show that extraordinary circumstances prevented him from filing on time. The Magistrate Judge recommended that Sheppard's Motion to Dismiss as Untimely be granted, and that the Petition be denied. The Court finds no plain error in this recommendation. See Perez v. Florida, 519 F. App'x 995, 997 (11th Cir. 2013) ("[W]e have not accepted a lack of a legal education and related confusion or ignorance about the law as excuses for a failure to file in a timely fashion."); Outler v. United States, 485 F.3d 1273, 1283 n. 4 (11th Cir. 2007) ("[P]ro se litigants, like all others, are deemed to know of the one-year statute of limitations.")
The Magistrate Judge determined that it is not debatable that Petitioner's Petition was untimely filed. The Magistrate Judge recommended that a certificate of appealability not be issued to Petitioner, and the Court finds no plain error in this recommendation. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that, to obtain a certificate of appealability on a denial of a habeas petition on procedural grounds, a Petitioner must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling").
III. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King's Order and Final Report and Recommendation [15] is ADOPTED, and Respondent Stan Sheppard's Motion to Dismiss the Petition as Untimely [9] is GRANTED.
IT IS FURTHER ORDERED that Petitioner James Anthony Dixon's federal habeas corpus Petition [1] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
SO ORDERED.