Opinion
4:21-CV-00119-CDL-MSH
04-13-2022
MICKEY CARL STINSON, Petitioner, v. Warden BRIAN CHAMBERS, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Petitioner Mickey Carl Stinson filed an application for habeas corpus relief under 28 U.S.C. § 2254 (ECF No. 1). Pending before the Court is Respondent Chambers' motion to dismiss (ECF No. 15) and Petitioner's motion to grant his petition (ECF No. 18). For the reasons stated below, it is recommended that Respondent's motion be granted, Petitioner's motion be denied as moot, and Petitioner's habeas application be dismissed.
BACKGROUND
In July 1998, a Muscogee County grand jury returned a thirty-seven-count indictment charging Petitioner with burglary, theft by taking, theft by taking of a motor vehicle, theft by bringing stolen property into the state, and possession of tools for the commission of a crime. Resp't's Ex. 1, at 1-13, ECF No. 17-1. On March 15, 1999, a jury in the Superior Court of Muscogee County found Petitioner guilty of burglary (Counts 17, 19, 20, 27), theft by taking (Counts 2, 3, 4, 6, 8, 9, 10, 11, 12, 13, 15, 18, 22, 26, 32), theft by bringing stolen property into the state (Counts 28, 34), and possession of tools for the commission of a crime (Count 37). Resp't's Ex. 2, at 1-4, ECF No. 17-2. He was sentenced to twenty years' confinement each on Counts 17, 19, 20, and 28; twenty years' consecutive confinement on Count 3; twenty years' concurrent confinement on Count 10; ten years' consecutive confinement on Count 11; ten years' concurrent confinement on Counts 2, 4, 6, 8, 9, 13, 15, 18, 22, 26, and 32; twelve months' concurrent confinement on Count 12; ten years' concurrent confinement each on Counts 28 and 34; and five years' concurrent confinement on Count 37. Id.
On July 19, 2000, Petitioner moved for a new trial. Resp't's Ex. 4, at 2, ECF No. 17-4. On January 25, 2008, the court vacated Petitioner's convictions and sentences for Counts 11, 16, and 17, but upheld the remaining convictions. Resp't's Ex. 3, at 1-2, ECF No. 17-3. Prior to receiving a ruling on his motion for new trial, Petitioner filed his first federal habeas petition. See Stinson v. Georgia, No. 4:07-CV-121-CDL, 2008 WL 623210, at *1 (M.D. Ga. Mar. 4, 2008). This Court, however, denied his petition for lack of exhaustion. Id. at *2.
Petitioner was not convicted of Count 16. See Resp't's Ex. 2, at 1. It appears this was a typographical error in ruling on the motion for new trial. This discrepancy, however, does not affect Petitioner's current federal habeas application.
On April 4, 2008, Petitioner appealed his conviction, arguing that the evidence did not support guilty verdicts on Counts 2, 3, 9, 15, and 18. Resp't's Ex. 4, at 3-4. On October 22, 2008, the Georgia Court of Appeals affirmed each of Petitioner's convictions except for the Count 9 theft by taking conviction, finding the evidence did not support a felony amount and remanding Petitioner's case for resentencing on Count 9. Resp't's Ex. 5, at 1, ECF No. 17-5; Stinson v. State, 294 Ga.App. 184, 184-87 (2008). On September 2, 2009, the Muscogee County Superior Court granted the State's motion for nolle prosequi of Count 9. Resp't's Ex. 6, at 2, ECF No. 17-6.
On April 18, 2017, Petitioner was granted parole, but on February 6, 2018, that parole was revoked. Resp't's Ex. 7, at 1, ECF No. 17-7. Petitioner filed a state habeas corpus petition in Dodge County Superior Court on October 24, 2018, challenging his convictions. Resp't's Ex. 8, at 1-6, ECF No. 17-8. On January 27, 2020, the state habeas court dismissed the petition as untimely. Resp't's Ex. 9, at 1-2, ECF No. 17-9. On August 18, 2020, the Georgia Supreme Court denied Petitioner's application for a certificate of probable cause to appeal the state habeas court's decision. Resp't's Ex. 11, at 1, ECF No. 17-11.
Petitioner's parole was revoked for violating the condition that he commit no criminal offenses. Resp't's Ex. 7, at 1. On October 29, 2018, a Marion County grand jury returned a six-count indictment, charging Petitioner with burglary in the second degree (Count 1), theft by taking (Count 2), possession of tools for the commission of a crime (Count 3), fleeing or attempting to elude a police officer (Count 4), criminal attempt to commit a felony (Count 5), and theft by receiving property stolen in another state (Count 6). Resp't's Ex. 16, at 1-5, ECF No. 17-16. On December 14, 2021, Petitioner pleaded guilty to Counts 3, 4, 5, and 6. Pet'r's Mot. Attach. 2, at 1-4, ECF No. 18-2. He was sentenced to a term of ten years on Counts 3 and 4-serving four in confinement, which he received credit for time served, and the remainder on probation. Id. at 1. He received two years' probation on Count 5, and ten years' probation on Count 6, both to be served concurrently with Counts 3 and 4. Id. at 4.
On August 7, 2020, Petitioner filed a second state habeas corpus petition in Dodge Count Superior Court, but on August 16, 2021, that petition was dismissed as successive. Resp't's Ex. 13, at 1-7, ECF No. 17-13; Resp't's Ex. 14, at 1-4, ECF No. 17-14. On September 16, 2021, Petitioner applied to the Georgia Supreme Court for a certificate of probable cause. Resp't's Ex. 15, at 1, ECF No. 17-15. That application remains pending. See Stinson v. Bowen, No. S22H0187 (Ga. 2022).
On July 8, 2021, while his second state habeas corpus petition was pending, Petitioner filed this second federal habeas application (ECF No. 1). He raises claims of actual innocence, prosecutorial misconduct, and ineffective assistance of counsel as they relate to his Marion County and Muscogee County convictions. Recast Pet. 5, ECF No. 6; Am. Pet. 1-2, ECF No. 12. Respondent filed a motion to dismiss (ECF No. 15) on December 13, 2021. The Court received Petitioner's motion to grant his habeas petition (ECF No. 18) on January 14, 2022. Respondent responded (ECF No. 19) to Petitioner's motion on January 26, 2022, and the Court received Petitioner's reply (ECF No. 20) on February 25, 2022. Respondent's motion to dismiss and Petitioner's motion to grant his habeas petition are ripe for review.
DISCUSSION
Respondent moves to dismiss Petitioner's application for federal habeas relief as it relates to his Muscogee County conviction because it was untimely filed outside the applicable limitations period. Br. in Supp. of Mot. to Dismiss 4-6, ECF No. 15-1. Petitioner responds that his untimeliness should be excused for actual innocence. Pet'r's Mot. 3-6, ECF No. 18. With respect to Petitioner's Marion County conviction, Respondents move to dismiss for lack of exhaustion. Resp't's Resp. 6-9, ECF No. 19.
It is unclear whether Petitioner has abandoned this claim for relief. Petitioner states that the grounds surrounding his Marion County conviction has been resolved and makes no further arguments concerning this conviction. Pet'r's Mot. 6; Pet'r's Reply 2, ECF No. 20. Thus, it appears Petitioner has abandoned this claim for relief. See Gailes v. Marengo Cnty. Sheriff's Dep't, 916 F.Supp.2d 1238, 1243 n.11 (S.D. Ala. 2013) (“The Court will of course treat such a claim as abandoned if the plaintiff has clearly manifested an intention to abandon it, as by express withdrawal or by a statement [he] is unopposed to the defendant's motion.”). Nevertheless, as Petitioner is proceeding pro se, the Court will still address this claim for relief and Respondent's argument that it should be dismissed for failure to exhaust.
The Court agrees that Petitioner's application for habeas relief is untimely as it relates to his Muscogee County conviction and is unexhausted as it relates to his Marion County conviction, and therefore, recommends that Respondent's motion to dismiss be granted.
I. The Applicable Limitations Period
The Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) was enacted primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions. Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia, J., dissenting) (“The purpose of the AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the . . . overloading of our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisdiction.”). The AEDPA, effective April 24, 1996, therefore instituted a time bar as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. ...
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). The limitations period begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). To determine whether a petition was timely filed, the Court “must determine (1) when the collateral motion was filed and (2) when the judgment of conviction became final.” McCloud v. Hooks, 560 F.3d 1223, 1227 (internal quotation marks omitted).
A. Petitioner's Habeas Application
Petitioner's limitations period has expired, and his petition is untimely. Following his direct appeal and the Georgia Court of Appeals subsequent remand, the trial court, on September 2, 2009, granted the State's request to nolle prosequi Count 9 of the indictment. Petitioner then had thirty days to appeal that order but failed to do so. See O.C.G.A. § 5-6-38(a). Petitioner's conviction thus became final on October 9, 2009, when his time for seeking further appellate review expired.
Petitioner's current federal habeas application is untimely. Petitioner had one year from October 9, 2009-until October 10, 2010-within which to file his federal application for habeas relief unless the limitations period was tolled. 28 U.S.C. § 2244(d). He did not file a federal habeas application or state collateral attack within this one-year period. Rather, Petitioner waited until October 25, 2018-eight years after the limitations period expired-to file his first state habeas petition. “A state court petition . . . that is filed following the expiration of the limitations period cannot toll [the AEDPA] period because there is no period remaining to be tolled.” Webster v. Moore, 199 F.3d 1256, 1299 (11th Cir. 2000). As such, Petitioner's state habeas petition does not affect the timeliness of his federal habeas application.
Although Petitioner first sought federal habeas relief in 2007-which the Court dismissed on March 4, 2008, before the limitations period even began to run-that application had no effect on the timeliness of his current federal habeas petition. See Duncan v. Walker, 533 U.S. 167, 181 (2001) (“§ 2244(d)(2) does not toll the limitations period during the pendency of a federal habeas petition.”).
B. Actual Innocence
The United States Supreme Court has recognized that “actual innocence, if proved, serves as a gateway through which a petitioner may pass in the case of expiration of the statute of limitations.” McQuiggins v. Perkins, 569 U.S. 383, 386 (2013). The Georgia Court of Appeals affirmed Petitioner's convictions-except for Count 9-on October 22, 2008, finding the evidence presented at trial supported the guilty verdict. Stinson, 294 Ga.App. at 184-87. Because the Georgia Court of Appeals reached the merits of Petitioner's habeas claims, a federal court is restricted in its ability to grant relief and must generally give deference to the findings of the state court. See Cave v. Sec'y for Dep't of Corr., 638 F.3d 739, 742 (11th Cir. 2011); Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1345 (11th Cir. 2001) (“AEDPA imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.”) (internal quotation marks omitted) (citing Renico v. Lett, 559 U.S. 766, 773 (2010)). To reach the merits of Petitioner's habeas claims, a federal court must find that Petitioner's claims are meritorious and that the state court's resolution of those claims (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Cave, 683 F.3d at 742-43; 28 U.S.C. § 2254(d)(1)-(2).
In § 2254 proceedings, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner contends that had he presented the records of his Alabama convictions when he appealed, then the state appellate court would not have affirmed his convictions. Pet'r's Reply 3, ECF No. 20. The Court disagrees. The Georgia Court of Appeals specifically noted that “even if [Petitioner] was not physically present during the commission of the crimes, once a common design is shown by evidence tending to indicate that the individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates would, in legal contemplation, be an act of each of them.” Stinson, 294 Ga.App. at 185 (internal quotation marks omitted). Thus, whether Petitioner could have shown that he was incarcerated in Alabama at the time the unlawful acts occurred is immaterial, as the Georgia Court of Appeals found the evidence supported Petitioner's conviction “based on his involvement as a party to the crime or as a co-conspirator.” Id. at 186. Petitioner has not met his burden of producing clear and convincing evidence to negate the factual findings of the Georgia Court of Appeals, and therefore, deference should be given to the findings of the state court. Accordingly, Petitioner cannot use a claim of actual innocence to overcome his untimeliness.
C. Equitable Tolling
Petitioner is also not entitled to equitable tolling. The one-year AEDPA limitations period is subject to equitable tolling only in certain situations. Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649. Petitioner fails to show that he pursued his rights diligently. After his conviction became final in 2009, nearly nine years elapsed before he filed a state habeas petition. Petitioner did nothing to pursue a state habeas petition concerning his 1999 conviction and sentence in the interim. Consequently, Petitioner is not entitled to equitable tolling and his petition is untimely under 28 U.S.C. § 2244(d).
II. Exhaustion
The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, § 104, 110 Stat. 1214, “limits the power of a federal court to grant a writ of habeas corpus vacating the conviction of a state prisoner on the ground that the conviction was obtained in violation of the Constitution of the United States.” Hardy v. Comm'r, Ala. Dep't of Corr., 684 F.3d 1066, 1074 (11th Cir. 2012) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); 28 U.S.C. § 2254(b)-(c)). One of those limitations is that a district court “may not grant such applications unless . . . the applicant has exhausted state remedies.” Cullen, 563 U.S. at 181. A state prisoner is required (with few exceptions) to “exhaust[] his state remedies by presenting his constitutional claim to the State courts, to afford them an opportunity to correct any error that may have occurred.” Hardy, 684 F.3d at 1074.
“A failure to exhaust occurs . . . when a petitioner has not ‘fairly presented' every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam)). The exhaustion requirement thus reflects a policy of “comity” between state and federal courts and “reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (internal quotation marks omitted). “If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion.” Gore v. Crews, 720 F.3d 811, 815 (11th Cir. 2013) (per curiam).
“When non-exhaustion is asserted by the respondent, the burden is upon the petitioner to come forward with documentation demonstrating that the instant claims have been exhausted.” Simmons v. Decker, No. 3:04cv436/RS, 2006 WL 3667279, at *5 (N.D. Fla. Dec. 12, 2006) (citing Darr v. Burford, 339 U.S. 200, 218-19, (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)); see also Ellison v. White, No. 5:18-cv-00381-MTT-CHW, 2019 WL 7759272, at *2 (M.D. Ga. Oct. 2, 2019) (citing Darr and concluding Petitioner failed to establish exhaustion of state remedies), recommendation adopted by 2020 WL 448226 (M.D. Ga. Jan. 28, 2020). Here, Petitioner fails to meet his burden.
A. Petitioner's Habeas Application
On December 14, 2021, Petitioner pled guilty to his Marion County charges. Pet'r's Mot. Attach. 2, at 1-4. He has not produced any further documents indicating that he has appealed this conviction or otherwise sought collateral relief. “An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). Thus, Petitioner failed to exhaust his available state remedies prior to challenging his conviction in Marion County.
Additionally, Petitioner must challenge this conviction in a separate habeas petition. See Rule 2(e) of the Rules Governing § 2254 Cases (“A petitioner who seeks relief from judgements of more than one state court must file a separate petition covering the judgment or judgments of each court.”).
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies a habeas petition on procedural grounds without reaching the merits of the petitioner's application for habeas relief, this standard requires a petitioner to demonstrate 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.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). Petitioner cannot meet this standard, and therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Respondent's motion to dismiss (ECF No. 15) be GRANTED, and that Petitioner's application for habeas relief (ECF No. 1) be DISMISSED as untimely and for lack of exhaustion. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
Petitioner has also filed a “Motion to grant Petition for Writ of Habeas Corpus” that simply restates his recast and amended petition. See generally Pet'r's Mot. 1-6. In light of the Court's recommended dismissal, it is also RECOMMENDED that Petitioner's motion (ECF No. 18) be DENIED as moot.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.