Darden v. Keller et al, No. 1:2012cv02268 - Document 14 (N.D. Ga. 2013)

Court Description: ORDER AND OPINION ADOPTING the 11 Final Report and Recommendation as the Order of the Court. Petitioner's habeas corpus petition is DENIED and the instant action is DISMISSED. A Certificate of Appealability is DENIED. Signed by Judge Orinda D. Evans on 3/25/2013. (anc)
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MAR 2 52013 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TOPAZ DARDEN, Fed. Reg. No. 56188-019, Petitioner, Ji~ j;!)JQ:en, CierkK 71:'f,~ DeplJt:l C~l~!'k PRISONER HABEAS CORPUS 28 U.S.C. § 2254 v. CIVIL ACTION NO. 1:12-CV-2268-0DE-JSA J.A. KELLER, Wardeni et al., Respondents. ORDER AND OPINION This matter is before the Court on the Final Report and Recommendation ("R&R") issued by United States Magistrate Judge Justin S. Anand [Doc. 11], and Petitioner's objections thereto [Doc. 13]. claims for After conducting an extensive review of Petitioner's relief, Magistrate Judge Anand recommended that Petitioner's federal habeas corpus petition be denied. Under 28 U.S.C. § 636(b) (1) and Rule 72 of the Federal Rules of Civil Procedure, the Court is obligated to conduct a de novo review of the portions of the R&R to which Petitioner has objected. The Court reviews the remainder of the R&R for plain error. United States v. 1983). Where a petitioner does not file specific objections to Slay, 714 F.2d 1093, 1095 (11th Cir. factual findings and recommendations of the magistrate judge, however, this Court need not perform a de novo review. v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) A072A (Rev. BIB 2) Garvey (citing, inter alia, Stokes v. Singletary, 952 F.2d 1567, 1576 (11th Cir. 1992); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988)). I. Discussion Petitioner filed this federal habeas corpus petition challenging his expired 1985 burglary conviction and sentence. (Doc. 1) Court's The claims in the petition essentially challenge this 1 use of Petitioner's 1985 conviction to enhance his federal sentence in this Court for possession of a firearm by a convicted felon. Magistrate Judge Anand based his recommendation to dismiss the petition for the following al ternati ve reasons: (1) Petitioner is not "in custody" under the 1985 conviction and this Court therefore lacks jurisdiction under § 2254; (2) Petitioner cannot collaterally challenge his expired 1985 state court conviction under § 2254; (3) the petition was untimely since the limitation period was triggered on April 26, 1996, and even if § Petitioner's 2254 (d) (1) (D) position applied, could have a reasonable discovered that person his in 1985 conviction would enhance his federal sentence when this Court first sentenced him in July of 2005, demonstrate 1 that he was actually (Rev.S/S 2) innocent Petitioner's sentence expired in 1991. 2 A072A and Petitioner did not of the (Doc. 10 at 1985 ~ 2). conviction; and (4) Petitioner procedurally defaulted all of his claims. (Doc. 11). Petitioner specifically obj ects to most, Magistrate Judge Anand's findings. if not all, of For the reasons discussed below, Petitioner's objections lack merit. A. The "In Custody" Requirement claims Petitioner requirement because he that is he meets the "in custody" serving his period of confinement under his federal conviction at the United States Penitentiary in Atlanta, and because under Lackawanna Attorney v. Coss, 532 U.S. 394 (2001), his § County District 2254 petition could be construed as a challenge to the enhanced federal sentence he is serving. 2 The Magistrate Judge correctly found that Petitioner is not in custody pursuant to the 1985 conviction. See Maleng v. Cook, 490 U.S. 488, 491-92 (1989) habeas petitioner no longer remains conviction after it has fully expired, enhance a federal sentence). "in (holding that a custody" under a even if it is used to Magistrate Judge Anand also correctly stated that even if, as Petitioner argues, the instant The Supreme Court in Lackawanna created a limited exception to the "in custody" rule set forth in Maleng, supra, by holding that the "in custody" requirement is satisfied where the § 2254 habeas petition "[could] be construed" as a challenge to the enhanced federal sentence that the petitioner currently is serving. Lackawanna, 532 U.S. at 401-02. 2 3 A072A (Rev.BIB 2) petition "[could] be construed" as a challenge to Petitioner's federally enhanced sentence under the exception in Lackawanna, this Court could not consider any such challenge because it is successive and Petitioner did not seek authorization from the Eleventh Circuit to file any such successive challenge. U.S.C. 2244(b) (3) (A). § See 28 As Petitioner unsuccessfully filed a challenge to his federal sentence, see United States v. Darden, Criminal Action No. 1:04-CR-288-0DE-AJB (Docket Nos. 126), this Court agrees with Judge Anand's conclusion. 86, 124, As such, Petitioner's objection is without merit. B. Collateral Attack Petitioner also claims that he is actually innocent of the 1985 offense because he unintelligently and unknowingly entered into his plea based upon trial counsel's ineffective assistance, and, therefore, he can collaterally attack the conviction even though it is expired. however, Petitioner cannot challenge his expired 1985 sentence through a to As discussed by Magistrate Judge Anand, § 2254 habeas petition on the basis that it was used enhance his federal sentence Petitioner attempts to do here. 396 - 97 that "it was enhanced 2) exactly based what 532 U.S. at . through a petition corpus under 28 U.S.C. 4 A072A (Rev.8/8 is See Lackawanna, . unavailable . ("relief is . for a writ of habeas ground which on § 2254" an on the allegedly unconstitutional prior conviction for which the petitioner is no longer in custody."); Daniels v. United States, 382 (2001) 532 U.S. 374, (" [I] f a prior conviction used to enhance a federal sentence is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because unsuccessfully), then that defendant the defendant did so . may not collaterally attack his prior conviction through a motion under 2255. § 11 ); Jackson v. Secly, Deplt of Corr., 206 F. App'x 934, 936-37 (11th Cir. 2006) (holding that the petitioner was not entitled to attack an expired conviction on the basis that it was used to enhance the federal sentence he currently was serving) . To the innocent," degree he is that Petitioner correct that if claims he can he is show "actually "compelling evidence" that he is actually innocent of the crime for which he was convicted, and which he timely manner," he could, 1985 conviction. v. United "could not in fact, have uncovered in a collaterally challenge his See Lackawanna, 532 U.S. at 405-06; McCarthy States, 320 F.3d 1230, 1233 (11th Cir. 2003). Petitioner, however, does not show "compelling evidence" that he is actually innocent of the 1985 burglary; rather, he merely states that his attorney should have warned him that there could 5 A072A (Rev. SIS 2) be sentencing consequences if he was later convicted in federal court. Petitioner's argument is one of "legal insufficiency" and as such, is insufficient to demonstrate that he innocent of the 1985 burglary. 523 U.S. 614, 623-24 (1998) is actually See Bousely v. United States, ("[A]ctual innocence means factual innocence, not mere legal insufficiency.") ; Schlup v. Delo, 513 U.S. 298, claim 324 (1995) requires ("To be credible, petitioner to [an actual support his innocence] allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial."). Moreover, the Eleventh Circuit has specifically rejected an identical argument. See McCarthy, 320 F.3d at 1234 (rejecting the petitioner's claim that he should be excused from the general rule in Daniels that he could not collaterally challenge an expired state court conviction on the basis that it enhanced a federal sentence because, inter alia, counsel did not warn him that his guilty plea could have sentencing consequences if he were later convicted in objection also is without merit. 6 A072A (Rev.S/S 2) federal court). Thus, this C. The Magistrate Judge's Determination that the Petition is Untimely Petitioner relies upon Wainwright v. (1977), Thompson v. Nagle, 118 F.3d 1442, Sykes, 433 U.S. 1450-51 72 (11th Cir. 1997) and a few Ninth Circuit cases as authority that this Court should "excuse" his untimeliness. These cases, however , involve procedural default of the petitioner's claims rather than any timeliness issue. As none of those cases are relevant to whether Judge Anand was correct in concluding that the petition is and untimely, having reviewed Judge Anand's thorough analysis, the Court finds that Petitioner's objection is without merit. D. Procedural Default Petitioner claims that he "never slept on his appeal rights" and that from the time his federal sentence was imposed, he has been diligent in pursuing "available remedies" in federal and state court. Judge Anand correctly found, however, that: (1) the state habeas court's decision declining to address the merits because of of petition - Petitioner's the challenge twenty-two was based on an procedural ground"; (2) year to his undue 1985 delay conviction in filing "independent and adequate the state as a result Petitioner's claims were procedurally defaulted; and (3) Petitioner had not demonstrated 7 A072A (Rev.8/8 2) cause, prejudice, or actual innocence to excuse the procedural defaul t of his See Wainwright, claims. Castro v. Everglades Corr. Cir. 2012) Inst., 433 U.S. at 86-87; 481 F. App'x 560, 562 (11th (holding state court's denial of petitioner's claim as untimely is an independent and procedural ground rendering the claim procedurally Bolender v. 1994). E. Singletary, defaulted 16 F.3d in federal 1547, court); 1569 n.29 accord (11th Cir. Thus, this objection also is without merit. Certificate of Appealability ("COA") Finally, Petitioner claims that Magistrate Judge Anand's recommendation to deny a COA was incorrect because he used a 28 U.S.C. "fundamentally wrong standard." that a certificate of applicant has made a appealability may § 2253(c) (2) states issue "only if the substantial showing of the denial of a constitutional right." When, as here, the district court denies relief on procedural grounds, the petitioner seeking a COA 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. Gonzalez v. Thaler, (emphasis added) 132 S. U.S. Ct. 641, 648 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) . Although Petitioner claims 8 A072A (Rev. SIS 2) otherwise, he has not demonstrated that reasonable jurists could differ as procedural findings in the R&R and, therefore, to the the Court need not discuss whether the petition states a valid claim of the denial of a constitutional right. See Slack, 529 U.S. at 485 (discussing both components in determining whether a COA may issue and stating that na court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments. II. H ) Conclusion Petitioner's objections are without merit, and the Court finds no clear error in the remainder of the Magistrate Judge's Report and Recommendation. IT IS THEREFORE ORDERED that the Court ADOPTS AS ITS ORDER the Magistrate Judge's Petitioner's Objections. Report and Recommendation over Petitioner's habeas petition [Doc. 1] is hereby DENIED and the instant action is DISMISSED. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. The Clerk is DIRECTED to close this case. IT IS SO ORDERED, this Cis- day of March, 2013. ' 1 ( fl-<-'h '------- ORINDA D. EVANS UNITED STATES DISTRICT JUDGE 9 A072A (Rev. SIS 2)