Petition for Writ of Certiorari — Alfred Starling, Petitioner v. Charles Mims, Warden

USCA11 Case: 22-13849

Document: 11-2

5

'-.i- ' :

Date Filed: 05/10/2023

I

Si.:

:

■

■

■

■

Page: 1 of 4

■■

3tt ffje

Hmfetr States (fcurt of Appeals

3for jfyz

No. 22-13849

ALFRED STARLING,

Petitioner-Appellant,

versus

WARDEN,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:22-cv-00030-CDL-MSH

ORDER:

ATPewt4.1

\

M

USCA11 Case: 22-13849

Document: 11-2

Date Filed: 05/10/2023

Order of the Court

2

Page: 2 of 4

22-13849

Alfred Starling is a Georgia prisoner serving a 20-year sen­

tence for armed robbery. On December 20, 2021, he filed a pro se

28 U.S.C. § 2254 petition, raising eight grounds for relief. The dis­

trict court dismissed the § 2254 petition, finding that it was timebarred. Mr. Starling now seeks a certificate of appealability

("COA”) and leave to proceed on appeal informa pauperis ("IFP").

To obtain a COA, a movant must make "a substantial show­

ing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

Where the district court dismissed a habeas petition on procedural

grounds, the movant must show that reasonable jurists would de­

bate (1) whether the motion states a valid claim of the denial of a

constitutional right, and (2) whether the district court was correct

in its procedural ruling. Slack v. McDaniel, 529 U.S. 473,484 (2000).

Here, reasonable jurists would not debate the district court’s

ultimate conclusion that Mr. Starling’s § 2254 petition was un­

timely. See Slack, 529 U.S. at 484. The record reveals that Mr. Star­

ling’s conviction was affirmed by the Georgia Court of Appeals on

October 4, 2017, and his conviction became final when the period

for seeking a writ of certiorari from the Georgia Supreme Court ex­

pired, on October 24, 2017. See Gonzalez v. Thaler, 565 U.S. 134,137

(2012); Ga. Sup. Ct. R. 38(2). Mr. Starling allowed 342 untolled

days to pass before filing his state habeas petition on October 2,

2018. The state court denied the petition on March 10, 2021. Ulti­

mately, the Georgia Supreme Court dismissed the application for a

certificate of probable cause as untimely on September 21, 2021. It

then issued its remittitur on October 7, 2021.

Q^p&kVDlx

(Vi

A OF 4

USCA11 Case: 22-13849

22-13849

Document: 11 -2

Date Filed: 05/10/2023

Order of the Court

Page: 3 of 4

3

To the extent that Mr. Starling argues that the limitations

period should have been tolled until the date when he received the

remittitur, he is incorrect. The denial of the petition becomes final

when the remittitur issues and not when it is received by the pris­

oner. Dolphy v. Warden, Cent State Prison, 823 F.3d 1342, 1344-45

(11th Cir. 2016); Ga. Sup. Ct. R. 60(2). Moreover, to the extent that

Mr. Starling asserts that the limitations period should have been

tolled during the time in which he sought reconsideration, he is

also incorrect. Ultimately, because the motion for reconsideration

was not timely filed within ten days of the Georgia Supreme

Court's denial of his application, it was not "properly filed" and did

not toll the limitations period. Gorby v. McNeil, 530 F.3d 1363,1366

(11th Cir. 2008); Ga. Sup. Ct. R. 27.

Therefore, when the Georgia Supreme Court’s remittitur is­

sued on October 7, 2021, following the denial of his state habeas

petition, only 23 days of the limitation period remained, which be­

gan running again the next day, on October 8,2021. Thus, the lim­

itations period expired 23 days later, on October 31, 2021. Because

Mr. Starling did not file his § 2254 petition until December 20,2021,

the district court properly dismissed it as untimely.

Reasonable jurists also would not debate whether Mr. Star­

ling was entitled to equitable tolling. See Slack, 529 U.S. at 484.

First, to the extent that he argues that he should receive equitable

tolling because he did not receive the remittitur until December 20,

2021, such argument is unavailing, as the remittitur is meant for

the court and not the parties, and Mr. Starling waited until

A- i

3 of 4

USCA11 Case: 22-13849

4

Document: 11-2

Date Filed: 05/10/2023

Order of the Court

Page: 4 of 4

22-13849

December 1, 2021, to request the remittitur, after he had already

filed an untimely motion for reconsideration. Second, to the extent

that Mr. Starling cites his limited access to the law library due to

the Covid-19 pandemic, under this Court’s precedents, lockdowns

and similar limitations do not qualify as extraordinary circum­

stances to justify equitable tolling. See Dodd, 365 F.3d at 1282-83.

Third, Mr. Starling’s assertion that the prison-mailbox rule should

apply to. the date on which he received the Georgia Supreme

Court’s remittitur is without merit. See Houston v. Lack, 487 U.S.

266, 275 (1988).

Lastly, reasonable jurists would not debate whether the miscarriage-of-justice exception applied to Mr. Starling’s § 2254 peti­

tion. See Slack, 529 U.S. at 484. First, to the extent that Mr. Starling

argued that the evidence to convict him was insufficient because it

was based on hearsay, such argument does not amount to “new

reliable evidence that was not presented at'trial.’’ See McQuiggin v.

Perkins, 569 U.S. 383, 399 (2013). Similarly, his claim that the trial

court improperly introduced his custodial statements does not

amount to “new reliable evidence that was not presented at trial."

Id.

Accordingly, Mr. Starling’s motion for a COA is DENIED.

His motion for IFP is DENIED as moot.

7^

UNITED STATES CIRCUIT JUDGE

q aT1 4

&-4-

Case 4:22-cv-00030-CDL-MSH Document 29 Filed 10/17/22 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

ALFRED STARLING,

Petitioner,

*

*

vs .

. WARDEN DARRIN MYERS,

Respondent.

CASE NO. 4:22-CV-30-CDL-MSH

*

*

ORDER

After a de novo review of the record in this case, the Report

and Recommendation filed by the United States Magistrate Judge on

August 16, 2022 is hereby approved, adopted, and made the Order of

the Court, including the denial of a certificate of appealability.

The Court considered Petitioner's objections to the Report

and Recommendation and finds that they lack merit.

IT IS SO ORDERED, this 17th day of October, 2022.

S/Clay D. Land

CLAY D. LAND

U.S. DISTRICT COURT JUDGE

MIDDLE DISTRICT OF GEORGIA

j

\

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22

Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

p7

rT!=- ^

ALFRED STARLING,

AUG 1 8 2022

Petitioner,

vs.

r ■

k ,

. .. J

NO. 4:22-CV-30-CDL-MSH

Warden DARRIN MYERS,

Respondent.

ORDER AND RECOMMENDATION

Petitioner Alfred Starling, an inmate currently confined at Autry State Prison in

Pelham, Georgia, has filed a pro se application and amended application for habeas corpus

seeking relief under 28 IJ.S.C. § 2254 (ECF Nos. 1, 7). Pending before the Court is

Respondent’s motion to dismiss Starling’s habeas application as untimely (ECF No. 12).

For the reasons stated below, the Court recommends that Respondent’s motion be granted,

and Starling’s habeas petition be dismissed as untimely.

BACKGROUND

On May 13, 2008, a grand jury returned an indictment in the Superior Court of

Randolph County, Georgia, charging Starling with a single count of armed robbery.

Resp’t’s Ex. 1, at 1, ECF No. 14-1. Following a jury trial, Starling was found guilty, and

on August 15,2008, he was sentenced to twenty years in prison. Resp’t’s Ex. 2, ECF No.

14-2: Resp’t’s Ex. 12, at 1, ECF No. 14-12. He timely filed a motion for new trial, which

was ultimately denied on February 22, 2017. Resp’t’s Ex. 11, at 3, ECF No. 14-11.

Starling appealed, and the Georgia Court of Appeals affirmed his conviction on October 4,

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 2 of 11

2017. Resp’t’s Ex. 12, at 1. ^Starling did not file a motion for reconsideration'with the

Georgia Court of Appeals or a petition for a writ of certiorari to the Georgia Supreme Court.

Starling filed a state habeas petition in the Superior Court of Mitchell County, Georgia, on

October 2, 2018. Resp’t’s Ex. 3, at 1, F;CF No. 14-3. The state court denied the petition

on March 10, 2021. Resp’t’s Ex. 5, at 1, ECF No. 14-5. Starling filed a petition for a

certificate of probable cause with the Georgia Supreme Court on April 20,2021. Resp’t’s

Ex. 6, at 1, ECF No. 14-6. The Georgia Supreme Court dismissed the petition as untimely

on September 21,2021. Resp’t’s Ex. 7, ECF No. 14-7. It issued its remittitur on October

7, 2021. Resp’t’s Ex. 8, ECF No. 14-8. Starling moved for reconsideration on October

8, 2021, but the Georgia Supreme Court dismissed the motion as untimely on November

2, 2021. Resp’t’s Ex. 9, at 1, ECF No. 14-9: Resp’t’s Ex. 10. ECF No. 14-10.

Starling filed his federal habeas application On December 20, 2021.1 Pet. 26, ECF

No. 1. He amended his petition on February 24, 2021 (ECF No. 7). Respondent moved

to dismiss for untimeliness on June 2, 2022 (ECF No. 12). Starling timely responded to

the motion (ECF Nos. 15,20). He also filed a motion for discovery (ECF No. 211. These

motions are ripe for review.

I.

The Applicable Limitations Period

The Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) was

1 Although the Court received the habeas application on December 23, 2021, Starling signed it

on December 20, 2021. Pet. 26. “Under the prison mailbox rule, a pro se prisoner’s court filing

is deemed filed on the date it is delivered to prison authorities for mailing.” United States v.

Glover, 686 F.3d 1203. 1205 (11th Cir. 2012) (internal quotation marks omitted). “Unless there

is evidence to the contrary, like prison logs or other records, we assume that a prisoner’s motion

was delivered to prison authorities on the day he signed it.” Id.

2

£ ^ l(

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 3 of 11

enacted primarily to put an end to the unacceptable, delay inthe review of prisoners’ habeas'

petitions. See Hdhn.v. United States, 524 tJ.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

jurisprudence.”.). 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 post­

conviction 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. § 2.244(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

(11th Cir. 2009) (quotation marks omitted).

n.

Starling’s Habeas Application

Sterling’s limitations period has expired, and his petition is untimely. The Georgia

Court of Appeals affirmed Starling’s conviction bn October 4, 2017. Resp’t’s Ex. 12, at 1.

He had ten days to file a motion for reconsideration with the Georgia Court of Appeals or

3

3

'I

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 4 of 11

twenty days to file a petition for a writ of certiorari to the Georgia Supreme Court. Ga. R.

App. Ct. 37(b); Ga. Sup. Ct. R. 38(2). Because Starling did neither, his conviction became

final for AEDPA purposes on October 24, 2017, when his time to file a certiorari petition

with the Georgia Supreme Court expired. See Phillips v. Warden, 908 F.3d 667. 672 (11th

Cir. 2018) (explaining that the petitioner’s conviction became final under the AEDPA

when the time expired for him to file a petition for a writ of certiorari with the Georgia

Supreme Court). Thus, the one-year AEDPA limitations period for filing a federal habeas

petition began to run on October 24, 2017, and was originally scheduled to expire on

October 24, 2018. That period ran for 343 days until October 2,2018, when Starling filed

his state habeas petition. 28 U.S.C. § 2244fdX2f: see Phillips, 908 F.3d at 672 (noting

filing of state habeas petition tolled AEDPA limitations period until the conclusion of

petitioner’s state habeas proceedings). Therefore, Starling had 22 days following the

conclusion of his state habeas proceedings to file his federal application. ■

The state habeas court denied Starling’s petition on March 10, 2021. Resp’t’s Ex.

5, at 1. Starling filed a petition for a certificate of probable cause on April 20, 2022.2

Resp’t’s Ex. 6, at 167. The Georgia Supreme Court dismissed his petition as untimely on

September 21, 2021, and issued its remittitur on October 7, 2021, Resp’t’s Exs. 7-8.. At

--------- -------------------------...

-.-a

2 Petitioner moved the state habeas court to reconsider its denial of his petition on March 23,'

2021, but this did not extend his time to appeal to the Georgia Supreme Court. Pet. 24; Pet. Ex.

5, at 162, ECF No. 1-5. See Ferguson v. Freeman, 282 Ga. 180. 181 (2007) (noting rule that

“motions for reconsideration in the trial courts have no statutory basis and do not extend the time

for filing a notice of appeal”); see Daniel v. Warden, 783 F. App’x 1007. 1007-08 (11th Cir. 2019)'

(per curiam) (noting motion for reconsideration of denial of habeas petition filed in state court'did

not toll the time for filing an application for a certificate of probable cause to the Georgia Supreme

Court).

4

C/

£>^ ||

Case 4:22-cv-00030-CDL-MSH- Document 24 Filed 08/16/22 Page 5 of 11

this point, the remaining 22 days on the AEDPA limitations period began to run, and

Starling had until October.29,:2021, to;file his federal habeas petition. See Dolphy v.

Warden. 823 F.3d 1342.-1345 (11th Cin 2016.) (per curiam) (“Accordingly, when a state

habeas petitioner seeks a certificate of probable cause from the Georgia Supreme Court

and. the Court denies the request, the petitioner’s case becomes complete when the Court

issues the remittitur for the denial.” (citing O.C.G.A. $ 9-14-52faVh Starling, howeverdid not file his federal habeas application until December 20, 2021.3 Pet. 26.

Starling contends the AEDPA limitations period was tolled until he actually

received the Georgia Supreme Court’s remittitur at Autry State Prison on December 20,

2021, the same day he filed his federal petition. Pet’r’s Suppl. Br. 4, ECF No. 20: Pet’r’s

Suppl, Br. Ex. 1, ECF No. 20-1.: Starling cites no authority to support this position,

however, and, as noted ii'i the documentation sent to him by the Georgia Supreme Court, a

remittitur is sent to the lower courts, not to./the parties. Pet’r’s Suppl..Br. Ex. 1, at 2;.see

Ga, Sup: Ct. R. 60 (“A remittitur shallbe.transmitted to the Court from which the case was

3 On October 8, 2021, Starling filed a motion for reconsideration of the dismissal of his petition

for a Certificate of probable‘caiiise, which the Georgia Supreme Court dismissed as untimely on

November 2, 2021. Resp’t’s Ex. 9, at 1; Resp’t’s Ex. 10. That motion did not toll the AEDPA

limitations period. See, e.g., Wade v. Battle, 379 F.3d 1254. 1262 (11th Cir. 2004) (per curiam)

(‘•‘[A] state post-conviction application is ‘pending’ under § 2244(d)(2) both when it actually is

being’considered by the state habeas court and during the gap of time between the state habeas

court's^ initial disposition and the petitioner’s timely filing of a petition for review at the next

level.”); Horne v. Williams, No. CV 11.5-194. 2016 WT, 3014687. at *2 (S.D. Ga. May 23, 2016)

(“Petitioner’s untimely motion for reconsideration which the Supreme Court of Georgia denied on

December 11, 2014, has no effect on the statute of limitations.”), recommendation adopted by

2016 WL 3360517 (S.D. Ga. June’ 14, 2016}.. Moreover, even if the motion did toll the limitations

period, Starling’s habeas application would still be untimely.

5

sr

>(

Case 4:22-c'v-00030-CDL-MSH Document 24 Filed 08/16/22 Page-6 of 11

received'... .”).4 Therefore, Starling?s habeas application is untimely.>

HI.

'Actual Innocence

Starling argues any untimeliness should'be excused for actual innocence. Pet’r’s

Suppl. Br. 4. 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 IJ.S. 383. 386 (2013). “To

demonstrate actual innocence, the petitioner must show that there is new evidence and that,

‘in light of the new evidence, no juror, acting reasonably, would have voted to find him

guilty beyond a reasonable doubt.’”

Kraft v. Stewart, No. 18-10355-C, 2018 WL

8918477. at *3 (11th Cir. Nov. 28,2018) (quotingMcQuiggins, 569 U.S. at 386). “Actual

innocence means factual innocence, not mere legal insufficiency.” Johnson v. Fla. Dep ’t

of Corr., 513 F.3d 1328. 1334 (11th Cir. 2008) (quoting Bousley v. United States, 523 I J.S

614. 623 (1998)).

Starling does not demonstrate actual innocence. He argues he is actually innocent

“due to the evidence at trial did not prove [his] guilt beyond a reasonable doubt.” 'Pet’r’s

Suppl. Br. 9; see Mern. in Supp. of Am. Pet. 21-2.ECF No. 7-V (arguing actual innocence'

based on insufficiency of the evidence). This is not new evidence demonstrating factual

4 Starling also relies on the “mailbox rule” to support his argument that the AEDPA limitations

period was tolled until he received the remittitur. Pet’r’s Suppl. Br. 4. He misconstrues the

mailbox rule. That rule addresses when documents mailed by a prisoner are considered filed. It

does not add more time to a limitations period based on when he receives documents in prison.

SeeAbuhouran v. United States, No. 4:06 CV 2505, 2007 WL 1544585; at *2 (N.D. Ohio May 22,

2007) (noting that the federal mailbox rule did not “expand the limitations periods based on the

date that the prisoner receives a document in the mail”).

6

Op

t'l

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 7 of 11

innocence, but simply an .argument that the evidence was legally insufficient. . The

remainder of his argument complains about lack of probable cause for his arrest, admission

of hearsay, statements, and. use of his custodial statements.

Pet’r’s Suppl. Br. 9-11.

Again, none of Starling’s, arguments constitute new evidence- of factual innocence.

Therefore, his untimely habeas petition cannot be excused on this basis.

IV.

Equitable Tolling

. ■

;

•Starling 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 (quotation marks omitted). While Starling’s responses to the

motion to dismiss discuss actual innocence as grounds for excusing his untimely petition,

they do not address equitable tolling. Nevertheless, the Court has reviewed his previous

filings and notes his original petition invokes equitable tolling. : Pet. 24-25. He argues

that he had “limited,access” to the prison law library due to Covid-19, and as a result, he

was unable to meet, the deadline for filing a petition for a certificate of probable cause with

the Georgia-Supreme Court.; Id. -j He also blames the clerk of the Georgia Supreme Court

for not mailing him a copy of the remittitur. Id. at 24. He states he was “uncertain of the

days to count for filing.” Id. at 25.

Initially, the Court notes that Starling fails to clearly explain how his late filing of

.{

the petition for a certificate of probable cause with the Georgia Supreme Court is causally

connected to his failure to timely file his federal petition. See San Martin v. JfdcNeil, 633

7

n

\\

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 8 of 11

F.3d 1257. 1267 (11th Cir. 2011) (requiring a petitioner “to show a causal connection

between the alleged extraordinary circumstances and the late filing of the petition”).'

Assuming such connection exists, however, he still does not show entitlement to equitable

tolling. His conviction became final in October 2017, and he has had more than adequate

time to familiarize himself with the rules and deadlines for state and federal post-conviction

procedures. Moreover, “[i]t is well settled that mere ignorance of the law or lack of

f

knowledge of filing deadlines does not justify equitable tolling of the AEDPA’s limitation

period.” Spagnuolo v. United States, No. 2 l-cv-61044-BLOOM, 2021 WL 3290640. at

*2 (S.D. Fla. Aug. 2, 2021) (citing Johnson v. United States, 544 U.S. 295. 311 (2005)

(“[The Court has] never accepted pro se representation alone or procedural ignorance as

an excuse for prolonged inattention when a statute’s clear policy calls for promptness!.]”);

see Perez v. Florida, 519 F. App’x 995. 997 (11th Cir. 2013) (per curiam) (“[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.” (citing Rivers v. United States, 416 F.3d

1319. 1323 (11th Cir. 2005))). Further, the Eleventh Circuit has “held that no access or

limited access to a law library does not qualify aa an extraordinary circumstance to warrant

equitable tolling.” Bass v. Att’y Gen., No. 20-10985, 2022 WL 1658637. at *2 (11th Cir.

May 25, 2022) (per curiam) (citing Akins v. United States, 204 F.3d 1086. 1089-90 (11th

Cir. 2000)).

Additionally, Starling cannot show he has been pursuing his rights diligently! He

waited until only a few weeks prior to expiration of the AEDPA limitations period to file

his state habeas petition, thus leaving himself little time to file the federal petition after

8

OA l(

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/2Z Page 9 of 11

state habeas proceedings concluded.

Nevertheless, despite receiving the Georgia

Supreme Court’s order dismissing his petition for a certificate of probable cause on

September 28, 2021, Starling did not file his,federal habeas petition until December 20,

2021. Pet., 24, 26. While he states he filed a motion for reconsideration—which did not

toll the time for filing his federal petition-—and requested the Georgia Supreme Court clerk

send a copy of the remittitur when issued, he did not write the clerk until December 1,

2021. Id. at 24; Pet. Ex. 8, at 1-2, ECF No. 1-8. While Starling was only required to

exercise “reasonable diligence, not maximum feasible diligence,” he failed to meet even

that standard. San Martin, 633 F.3d at 1267 filth Cir. 2011) (quotation marks omitted);

see Bass, 2022 WL 1658637. at *2 (finding petitioner was not entitled to equitable tolling

despite hurricane and prison transfer where he failed to explain why he could not file his

petition in the several other months available). Consequently, Petitioner is not entitled to

equitable tolling.

■(,. ;

V.

’1

■

■ '

Motion for Discovery

Starling moves; for discovery and production of documents. Pet’r’s Mot. for Disc.

1. ECF No. 21

“Generally,, a habeas petitioner is not entitled to discovery as a matter of

ordinary course, bufmay be obtained upon showing good cause ... to believe that the

evidence sought would raise , sufficient, doubt about his guilt to undermine confidence in

the result of the trial.” Arthur v. Allen, 459 F.3d 1310. 1.310 (11th Cir. 2006) (quotation

marks and internal citation omitted).

“Good cause is demonstrated where specific

allegations show reason to believe that the petitioner may, if the facts are fully developed,

be able to demonstrate that he is entitled to relief.”, Id at 1310-11 (quotation marks

9

^ £>4 I /

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 10 of 11

omitted). “[G]ood cause for discovery cannot arise from mere speculation.” Id. at 1311.

Here, the Court is recommending dismissal .of his petition as untimely, and

therefore, is not reaching the merits of his petition.. Consequently, to the extent he seeks

discovery on issues that would otherwise be addressed in a timely petition, his request is

moot. Further, he alleges no facts suggesting the requested discovery will reveal new

evidence of actual innocence to excuse his untimely filing. See Wilson v. Gordy, No.

2:14-cv-02219-MHH-JHE, 2015 WT, 5315494. at *4 (N.D. Ala..Sept. 11,2015) (denying

discovery where petitioner did not “show[] good cause to believe further discovery would

uncover evidence that would enable him to meet the high standard of actual innocence”).

Accordingly, Starling’s motion for discovery is DENIED.

CERTIFICATE OF APPEALABILITY

Rule 11(a) of 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. § 2253tc¥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.” See Slack v. McDaniel, 529 U.S. 473. 478 (2000). Starling cannot

meet this standard and, therefore, a certificate of appealability in this case should be denied.

10

/o q£ ll

Case 4:22-cv-00030-CDL-MSH Document 24 Filed 08/16/22 Page 11 of 11

CONCLUSION

For the reasons stated above, it is recommended that Respondent’s motion to

dismiss (ECF No. 121 be granted and Starling’s application and amended application for

habeas relief (ECF Nos. 1, 7) be dismissed as untimely. ' Starling’s motion for discovery

(ECF No. 21) is denied. Pursuant to 28 TJ.S.C. § 63,6(b)(l). 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.

The parties afe 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 TJ.S.C. § 636fbXll waives

the right to challenge on appeal the district court’s order based on unobjected-to factual

and legal conclusions if the party \vas 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 ORDERED and RECOMMENDED, this 16th day of August, 2022.

/s/ Stephen Hyles______________________

UNITED STATES MAGISTRATE JUDGE

11

u

(I

USCA11 Case: 22-13849

Document: 13

Date Filed: 07/19/2023

Page: 1 of 2

In tfy£

Wixtxizb Jifate (ftmirt xA i\pp£afe

3for % Heirentff (Utrnttf

No. 22-13849

ALFRED STARLING,

Petitioner-Appellant,

versus

WARDEN,

Respondent-Appellee.

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:22-cv-00030-CDL-MSH

Before Jill Pryor, and Grant, Circuit Judges.

AA

I of- 3

USCA11 Case: 22-13849

Document: 13

Date Filed: 07/19/2023

Order of the Court

2

Page: 2 of 2

22-13849

BY THE COURT:

Alfred Starling has filed, a motion for reconsideration, pursu­

ant to 11th Cir. R. 22-l(c) and 27-2, of this Court's order denying a

certificate of appealability in his underlying habeas corpus petition,

28 U.S.C. § 2254. Upon review, Starling’s motion for reconsidera­

tion is DENIED because he has offered no new evidence or argu­

ments of merit to warrant relief.

c?

a

:.

.

•

•

■

-v.

•

•

Additional material

from this filing is

•

i»

available in the

Clerk's Office.