NEALY v. COX

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

DAVID NEALY, Jr., )
)
)
Petitioner, )
)
v. ) CIVIL ACTION NO. 5:25-cv-413 (MTT)
)
ERIC COX, )
)
)
Respondent. )
)

ORDER
United States Magistrate Judge Charles H. Weigle recommends granting
Respondent’s motion to dismiss Petitioner David Nealy, Jr.’s petition for habeas corpus
pursuant to 28 U.S.C. § 2254 as untimely. ECF 27. Petitioner objects. ECF 28. Pursuant
to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the Magistrate
Judge’s Recommendation to which Petitioner objects.
The Magistrate Judge recommends granting the motion to dismiss the petition as
untimely because Petitioner’s § 2254 habeas petition is more than twenty years out of
time. ECF 27 at 3. Petitioner does not argue that his petition is timely. ECF 28. Instead,
Petitioner objects that “[t]here should not be a statute of limitations” for challenging an
“unjust conviction” because “that violates the supreme laws of our great country.” Id. at
1. Petitioner does not say how the statute of limitations violates any particular law or
right, however, and Petitioner’s belief that there should not be a statute of limitations for
§ 2254 petitions does not change the fact that there is one.
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Petitioner also objects that the statute of limitations can “be overcome if there is
‘good cause’ to be shown” to “avoid a miscarriage of justice where there has been a
substantial denial of constitutional rights.” Id. at 2. Petitioner cites Georgia cases
discussing state habeas relief. Id. at 3. In the § 2254 context, Petitioner’s objection may
pertain to exceptions to the statute of limitations like equitable tolling or actual
innocence, but neither provides an exception to the statute of limitations here.
“Equitable tolling ‘is an extraordinary remedy limited to rare and exceptional
circumstances’ and typically should be ‘applied sparingly.’” Clemons v. Comm'r,
Alabama Dep't of Corr., 967 F.3d 1231, 1241 (11th Cir. 2020) (quoting Cadet v. Fla.
Dep't of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017)). “[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely filing.”
Holland v. Fla., 560 U.S. 631, 649 (2010) (citation modified). Petitioner states that he is
ignorant of the law and criminal procedure and has difficulty communicating his
thoughts through verbal communication. ECF 28 at 2. He also states that he placed
total faith in his state appellate attorneys who did not inform him of the deadlines
associated with pursuing habeas relief. Id. at 3. But as the Magistrate Judge observed,
over fifteen years elapsed between the time Petitioner’s conviction became final and
when he filed his state habeas petition. ECF 27 at 5. Petitioner has not shown that he
diligently pursued his rights during that time. In addition, Petitioner’s ignorance of the
law and his state appellate counsel’s failure to inform him of the statute of limitations
period for pursuing federal habeas relief are not extraordinary circumstances that stood
in his way and prevented timely filing. “‘[P]ro se litigants, like all others, are deemed to
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know of the one-year statute of limitations.’” Spears v. Warden, 605 F. App'x 900, 904
(11th Cir. 2015) (quoting Outler v. United States, 485 F.3d 1273, 1282 n. 4 (11th Cir.
2007)).
“The Supreme Court has recognized that a petitioner may ‘overcome’ the Act’s
‘one-year statute of limitations’ period based on ‘a convincing showing of actual
innocence.’” Stimpson v. Warden, 2025 WL 484049, at *3 (11th Cir. Feb. 13, 2025)
(quoting McQuiggin v. Perkins, 569 U.S. 383, 386, 392 (2013)). “This exception applies
to ‘cases in which new evidence shows it is more likely than not that no reasonable juror
would have convicted [the petitioner].’” Moore v. Frazier, 605 F. App'x 863, 868 (11th
Cir. 2015) (quoting McQuiggin, 569 U.S. at 395). Petitioner has not pointed to new
evidence showing it is more likely than not that no reasonable juror would have
convicted him, so the actual innocence exception does not overcome the one-year
statute of limitations period here.
Having reviewed the Magistrate Judge’s Recommendation and conducted a de
novo review of those portions of the Recommendation to which Petitioner objects, the
Court accepts and adopts the findings, conclusions, and recommendations of the
Magistrate Judge. The Recommendation (ECF 27) is ADOPTED and made the Order of
the Court. The motion to dismiss (ECF 20) is GRANTED, and the petition is
DISMISSED with prejudice. Petitioner has not shown a certificate of appealability is
warranted. Accordingly, a certificate of appealability is DENIED.
SO ORDERED, this 16th day of August 2026.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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