Petty v. Peters

• Court: District Court, S.D. Alabama
• Decided: September 19, 2025
• Docket: 1:23-cv-00026
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

GAVON JAQUEZ PETTY, AIS #311873, ) ) Petitioner, ) ) vs. ) CIV. ACT. NO. 1:23-cv-26-TFM-MU ) WARDEN KENNETH PETERS, ) ) Respondent. )

MEMORANDUM OPINION AND ORDER

On February 24, 2025, the Magistrate Judge entered a report and recommendation which recommends Petitioner’s Motion Under 28 U.S.C. § 2254 be denied and the petition dismissed. See Doc. 11. Petitioner timely submitted objections and no response to the objections was filed by the Respondent. See Doc. 12. In reviewing Petitioner’s objections, he argues that he has met the requirements to toll the statute of limitations on filing. The Court disagrees and Petitioner’s objections are overruled. After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of this Court. Accordingly, it is ORDERED that the Petition for Habeas Corpus brought pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED with prejudice as time barred. The Court further finds that Petty is not entitled to a Certificate of Appealability. Additionally, 28 U.S.C. § 1915(a) provides that, “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” In making this determination as to good faith, a court must use an objective standard, such as whether the appeal is “frivolous,” Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962), or “has no substantive merit.” United States v. Bottoson, 644 F.2d 1174, 1176 (5th Cir. Unit B May 15, 1981) (per curiam);1 see also Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982) (per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir. 1981). Stated differently: This circuit has defined a frivolous appeal under section 1915(d) as being one "'without arguable merit.'" Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987) (quoting Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)). "'Arguable means capable of being convincingly argued.'" Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir.1990) (per curiam) (quoting Menendez, 817 F.2d at 740 n.5); see Clark, 915 F.2d at 639 ("A lawsuit [under section 1915(d)] is frivolous if the 'plaintiff's realistic chances of ultimate success are slight.'" (quoting Moreland, 899 F.2d at 1170)).

Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991); see also Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996) (stating that “[f]actual allegations are frivolous for purpose of [28 U.S.C.] § 1915(d) when they are ‘clearly baseless;’ legal theories are frivolous when they are ‘indisputably meritless.’”) (citations omitted). The Court further certifies that any appeal would be without merit and not taken in good faith and therefore, Petty is not entitled to proceed in forma pauperis on appeal. Final Judgment shall issue separately in accordance with this order and Fed. R. Civ. P. 58. DONE and ORDERED this 19th day of September, 2025. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES DISTRICT JUDGE

1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit that were handed down prior to the close of business on September 30, 1981.