JOHNSON v. FORT

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION DERRICK A. JOHNSON, ) ) Petitioner, ) ) v. ) CIVIL ACTION NO. 5:22-cv-50 (MTT) ) KARL FORT, ) ) ) Respondent. ) __________________ ) ORDER United States Magistrate Judge Charles H. Weigle recommends granting the Respondent’s motion to dismiss (Doc. 12) Petitioner Derrick Johnson’s 28 U.S.C. § 2254 habeas petition on timeliness grounds. Doc. 16. Johnson objected, so pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo the portions of the Recommendation to which Johnson objects, and the remaining portions for clear error.

In his objection, Johnson argues that under Jimenez v. Quarterman, his motion for an out-of-time appeal in state court tolled the statute of limitations. 555 U.S. 113 (2009); Doc. 20 at 2-3. However, the Court agrees with the Magistrate Judge’s finding that “[b]ecause Petitioner was never granted the right to pursue a direct appeal, Jimenez has no application to Petitioner’s case.” Doc. 16 at 3. Thus, the “clock never restarted.” Id. After review, the Court accepts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation (Doc. 16) is ADOPTED and made the Order of the Court. Accordingly, the Respondent’s motion to dismiss (Doc. 12) is GRANTED and Johnson’s habeas action is DISMISSED with prejudice. As recommended by the Magistrate Judge, a certificate of appealability is DENIED.

Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Thus, any motion to proceed in forma pauperis on appeal is DENIED.

SO ORDERED, this 1st day of November, 2022.

S/ Marc T. Treadwell MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT