IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
JUSTIN M. MOORE, Petitioner, Civil Action No. v. 1:24-cv-01063-SDG TYRONE OLIVER, Respondent.
OPINION AND ORDER This matter is before the Court on the Final Report and Recommendation (R&R) entered by United States Magistrate Judge John K. Larkins, III [ECF 10], which recommends that Respondent Tyrone Oliver’s motion to dismiss the petition as untimely [ECF 8] be granted and that the instant 28 U.S.C. § 2254 petition for a writ of habeas corpus be dismissed pursuant to 28 U.S.C. § 2244(d). Petitioner Justin M. Moore filed objections to the R&R [ECF 13]. After careful consideration of the entire record, Moore’s objections are OVERRULED, and the R&R is ADOPTED in full. Oliver’s motion to dismiss [ECF 8] is GRANTED. Moore’s petition for a writ of habeas corpus [ECF 1] and a certificate of appealability are DENIED, and this action is DISMISSED. I. Background Moore, an inmate at Riverbend Correctional Facility in Milledgeville, Georgia, filed this action to challenge his December 6, 2010, conviction by a Fulton County Superior Court jury for felony murder, aggravated assault, fleeing and attempting to elude police, and possession of a firearm during the commission of a felony.1 The Georgia Supreme Court affirmed Moore’s conviction on January 27,
2014. Moore v. Georgia, 294 Ga. 450 (2014). On July 6, 2015, Moore filed a pro se habeas corpus petition in Hancock County Superior Court.2 The state habeas court denied the petition on March 22, 2018.3 Although Moore filed a notice of appeal
from that denial on September 15, 2017,4 it does not appear that he filed an application for a certificate of probable cause (CPC) with the Georgia Supreme Court. Moore then filed another petition for a writ of habeas corpus in Baldwin County Superior Court on November 22, 2022,5 which that court dismissed as
untimely and successive.6 On January 9, 2024, the Georgia Supreme Court denied Moore’s application for a CPC related to the Baldwin County petition.7 Moore signed the instant § 2254 petition on February 29, 2024, and the case was initiated
on March 11.8
1 ECF 1; see also Moore v. Georgia, 294 Ga. 450, 450 n.1 (2014). 2 ECF 9-1. 3 ECF 9-2. 4 ECF 9-3. 5 ECF 9-4. 6 ECF 9-5. 7 ECF 9-7. 8 ECF 1. Excluding certain exceptions that do not apply here, under 28 U.S.C. § 2244(d)(1), petitioners must file their § 2254 petition within one year of the date
that their state court judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The limitations period is tolled during the pendency of “a
properly filed application for State post-conviction or other collateral review.” Id. § 2244(d)(2). The R&R determined that, after the Georgia Supreme Court affirmed Moore’s conviction on January 27, 2014, he had ninety days—i.e., until April 28,
2014—to seek certiorari review with the United States Supreme Court.9 Because Moore did not seek such review, his judgment became final, and the limitations period began to run on that date, and expired one year later on April 28, 2015.10
The R&R further concluded that Moore is not entitled to statutory tolling under § 2244(d)(2) because he did not file his first state habeas corpus petition until July 6, 2015, which was after the limitations period had already expired.11 The R&R also
noted that Moore made no argument that might show how he is entitled to
9 ECF 10, at 4. 10 Id. 11 Id. at 4–5. equitable tolling.12 For those reasons, the R&R recommends that this matter be dismissed as untimely.
II. Applicable Legal Standards A party challenging a report and recommendation issued by a United States Magistrate Judge must file written objections specifically identifying the portions of the proposed findings and recommendations to which an objection is made and
must assert a specific basis for the objection. United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009). The district court must “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); Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990). Absent objection, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge,”
28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no clear error on the face of the record. Fed. R. Civ. P. 72(b). The district court has broad discretion in reviewing a magistrate judge’s report and recommendation. The district court may
consider or decline to consider an argument that was never presented to the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1290–92 (11th Cir. 2009). Further, “[f]rivolous, conclusive, or general objections need not be considered by
12 Id. at 5 n.4. the district court.” Schultz, 565 F.3d at 1361 (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)).
III. Discussion In his objections, Moore concedes that his petition is untimely, but asserts that the reason for his failure to timely file was his appellate counsel’s “abandoning” of his case.13 He further asserts that, if he has met the requirements
of § 2254(d) by showing that the state courts unreasonably applied federal law or based their decision on an unreasonable determination of the facts, the statute of limitations does not apply.14 Finally, Moore indicates that the statute of limitations
should not apply in this case because the jury’s verdict was repugnant.15 For the following reasons, Moore’s objections are OVERRULED. First, construing Moore’s contention that his appellate attorney abandoned the case as an argument that he is entitled to equitable tolling, such “tolling is an
extraordinary remedy ‘limited to rare and exceptional circumstances and typically applied sparingly.’” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)). A petitioner is
entitled to equitable tolling only if he shows “(1) that he has been pursuing his
13 ECF 13, at 2. 14 Id. 15 Id. at 3–4. rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Here, Moore argues only that his appellate counsel “abandon[ed]” him after the appeal instead of filing a § 2254 petition on his behalf.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
JUSTIN M. MOORE, Petitioner, Civil Action No. v. 1:24-cv-01063-SDG TYRONE OLIVER, Respondent.
OPINION AND ORDER This matter is before the Court on the Final Report and Recommendation (R&R) entered by United States Magistrate Judge John K. Larkins, III [ECF 10], which recommends that Respondent Tyrone Oliver’s motion to dismiss the petition as untimely [ECF 8] be granted and that the instant 28 U.S.C. § 2254 petition for a writ of habeas corpus be dismissed pursuant to 28 U.S.C. § 2244(d). Petitioner Justin M. Moore filed objections to the R&R [ECF 13]. After careful consideration of the entire record, Moore’s objections are OVERRULED, and the R&R is ADOPTED in full. Oliver’s motion to dismiss [ECF 8] is GRANTED. Moore’s petition for a writ of habeas corpus [ECF 1] and a certificate of appealability are DENIED, and this action is DISMISSED. I. Background Moore, an inmate at Riverbend Correctional Facility in Milledgeville, Georgia, filed this action to challenge his December 6, 2010, conviction by a Fulton County Superior Court jury for felony murder, aggravated assault, fleeing and attempting to elude police, and possession of a firearm during the commission of a felony.1 The Georgia Supreme Court affirmed Moore’s conviction on January 27,
2014. Moore v. Georgia, 294 Ga. 450 (2014). On July 6, 2015, Moore filed a pro se habeas corpus petition in Hancock County Superior Court.2 The state habeas court denied the petition on March 22, 2018.3 Although Moore filed a notice of appeal
from that denial on September 15, 2017,4 it does not appear that he filed an application for a certificate of probable cause (CPC) with the Georgia Supreme Court. Moore then filed another petition for a writ of habeas corpus in Baldwin County Superior Court on November 22, 2022,5 which that court dismissed as
untimely and successive.6 On January 9, 2024, the Georgia Supreme Court denied Moore’s application for a CPC related to the Baldwin County petition.7 Moore signed the instant § 2254 petition on February 29, 2024, and the case was initiated
on March 11.8
1 ECF 1; see also Moore v. Georgia, 294 Ga. 450, 450 n.1 (2014). 2 ECF 9-1. 3 ECF 9-2. 4 ECF 9-3. 5 ECF 9-4. 6 ECF 9-5. 7 ECF 9-7. 8 ECF 1. Excluding certain exceptions that do not apply here, under 28 U.S.C. § 2244(d)(1), petitioners must file their § 2254 petition within one year of the date
that their state court judgment of conviction “became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The limitations period is tolled during the pendency of “a
properly filed application for State post-conviction or other collateral review.” Id. § 2244(d)(2). The R&R determined that, after the Georgia Supreme Court affirmed Moore’s conviction on January 27, 2014, he had ninety days—i.e., until April 28,
2014—to seek certiorari review with the United States Supreme Court.9 Because Moore did not seek such review, his judgment became final, and the limitations period began to run on that date, and expired one year later on April 28, 2015.10
The R&R further concluded that Moore is not entitled to statutory tolling under § 2244(d)(2) because he did not file his first state habeas corpus petition until July 6, 2015, which was after the limitations period had already expired.11 The R&R also
noted that Moore made no argument that might show how he is entitled to
9 ECF 10, at 4. 10 Id. 11 Id. at 4–5. equitable tolling.12 For those reasons, the R&R recommends that this matter be dismissed as untimely.
II. Applicable Legal Standards A party challenging a report and recommendation issued by a United States Magistrate Judge must file written objections specifically identifying the portions of the proposed findings and recommendations to which an objection is made and
must assert a specific basis for the objection. United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009). The district court must “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); Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990). Absent objection, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge,”
28 U.S.C. § 636(b)(1), and need only satisfy itself that there is no clear error on the face of the record. Fed. R. Civ. P. 72(b). The district court has broad discretion in reviewing a magistrate judge’s report and recommendation. The district court may
consider or decline to consider an argument that was never presented to the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1290–92 (11th Cir. 2009). Further, “[f]rivolous, conclusive, or general objections need not be considered by
12 Id. at 5 n.4. the district court.” Schultz, 565 F.3d at 1361 (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)).
III. Discussion In his objections, Moore concedes that his petition is untimely, but asserts that the reason for his failure to timely file was his appellate counsel’s “abandoning” of his case.13 He further asserts that, if he has met the requirements
of § 2254(d) by showing that the state courts unreasonably applied federal law or based their decision on an unreasonable determination of the facts, the statute of limitations does not apply.14 Finally, Moore indicates that the statute of limitations
should not apply in this case because the jury’s verdict was repugnant.15 For the following reasons, Moore’s objections are OVERRULED. First, construing Moore’s contention that his appellate attorney abandoned the case as an argument that he is entitled to equitable tolling, such “tolling is an
extraordinary remedy ‘limited to rare and exceptional circumstances and typically applied sparingly.’” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quoting Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)). A petitioner is
entitled to equitable tolling only if he shows “(1) that he has been pursuing his
13 ECF 13, at 2. 14 Id. 15 Id. at 3–4. rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Here, Moore argues only that his appellate counsel “abandon[ed]” him after the appeal instead of filing a § 2254 petition on his behalf. However, “[i]t is well established that attorney error [even assuming that there was error here] is not an
extraordinary circumstance warranting equitable tolling.” Wainwright v. Sec’y, Dep’t of Corr., 537 F.3d 1282, 1286 (11th Cir. 2007) (citing Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); and Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999)). Moore
makes no further argument that he could not have filed a § 2254 petition on his own behalf in the year after his convictions were affirmed, and he has made no showing that he has been diligent in pursuing his rights because, for example, he
has not demonstrated that he did anything during the approximately fifteen- month period between the completion of his direct appeal and the filing of his state habeas corpus petition.
Second, Moore has not cited to any case law, and this Court is aware of none, that holds that the § 2244(d) statute of limitations does not apply if the petitioner can meet the requirements of § 2254(d). Indeed, the argument is nonsensical because the § 2254(d) requirements only establish the substantive requirements for
§ 2254 relief. Reading §§ 2244 and 2254 in the manner advocated by Moore would obviate the applicability of the statute of limitations entirely and thus render the § 2244(d) limitations period meaningless. The Court must “avoid statutory
constructions that render provisions meaningless.” Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344, 1351 (11th Cir. 1998). Third, Moore’s argument that the statute of limitations should not apply
because his conviction or sentence is repugnant similarly fails. There simply is no special class of claims that are exempt from the statute of limitations. See Morales v. Jones, 417 F. App’x 746, 749 (10th Cir. 2011) (holding that federal habeas corpus claim that the trial court lacked subject matter jurisdiction, a due process claim, is
subject to federal limitations period); Williams v. United States, 383 F. App’x 927, 929–30 (11th Cir. 2010) (holding that jurisdictional claim was subject to one-year limitations period under 28 U.S.C. § 2255(f)); Harrell v. White, 2014 WL 1017878, at
*1 (S.D. Ala. Mar. 17, 2014) (“[C]ourts have uniformly rejected the proposition that jurisdictional claims are exempt from AEDPA’s one-year limitations period.”); Wilwant v. Stephens, 2013 WL 3227656, at *2 (N.D. Tex. June 25, 2013) (citation
omitted) (“[T]his court agrees with other federal district and circuit courts holding that a federal petitioner cannot evade the effect of the statute of limitations by the ‘simple expedient’ of arguing that his conviction or sentence is void.”) (collecting cases). In summary, undersigned agrees with the R&R that Moore’s petition is
untimely and must be dismissed. Lastly, undersigned agrees with the R&R that Moore has not made the requisite showing for a Certificate of Appealability.16 “When the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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.” Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1169 (11th Cir. 2017) (emphasis in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Where, as here, “a
COA request concerns a procedural ruling, the required showing must include both the procedural issue and the constitutional issue.” Id. For the reasons discussed above, the Court concludes that reasonable jurists would not find this
dismissal on statute of limitations grounds “debatable,” and therefore a COA is DENIED. IV. Conclusion Moore’s objections are OVERRULED. The R&R [ECF 10] is ADOPTED as
the order of this Court. Oliver’s motion to dismiss the petition as untimely [ECF 8] is GRANTED, the instant petition for a writ of habeas corpus [ECF 1] is DENIED, and this action is DISMISSED with prejudice pursuant to 28 U.S.C. § 2244(d).
16 ECF 10, at 6–7. Further, a Certificate of Appealability is DENIED. If Moore wants appellate review of this order, he may seek a certificate of appealability from the Eleventh Circuit Court of Appeals under Federal Rule of Appellate Procedure 22. R. 11(a), R. Governing § 2254 Cases in the U.S. Dist. Cts. The Clerk is DIRECTED to mail a copy of this Order to Moore and close this case. SO ORDERED this 2nd day of January, 2025.
Em Steven D. Grimberg United States District Judge