NEALY v. COX

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

DAVID NEALY, JR., :
:
Petitioner, :
:
v. : Case No. 5:25-cv-413-TES-CHW
:
ERIN COX, :
Proceedings Under 28 U.S.C. § 2254
: Before the U.S. Magistrate Judge
Respondent. :
:

REPORT AND RECOMMENDATION
Before the Court is Respondent Erin Cox’s motion to dismiss (Doc. 20) this Section
2254 federal habeas action commenced by Petitioner David Nealy, Jr. (Doc1. For the
following reasons, it is RECOMMENDED that Respondent’s motion to dismiss (Doc. 20)
be GRANTED and that this action be DISMISSED with prejudice as untimely. It is
further RECOMMENDED that the Court DENY a certificate of appealability.
BACKGROUND
Petitioner challenges his January 2002 convictions in the Superior Court of Houston
County for aggravated child molestation, two counts of child molestation, statutory rape,
and two counts of contributing to the delinquency of minors. (Doc. 21-2). The trial court
sentenced Petitioner to thirty years for the aggravated child molestation count, twenty years
consecutive for each child molestation count and the statutory rape count, and twelve
months consecutive for each contributing to delinquency of a minor count. (Id.).
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Petitioner’s conviction was affirmed by the Court of Appeals of Georgia on September 18,
2003. (Doc. 21-3); Nealy v. State, No. A03A2116 (Ga. App. Sept. 18, 2003) (unpublished).
Petitioner filed a state habeas action on January 3, 2023, in the Superior Court of
Dodge County. (Doc. 21-4). Following an evidentiary hearing, the state habeas court
denied the petition as untimely on February 24, 2024. (Doc. 21-5). Petitioner filed an
application in the Supreme Court of Georgia for a certificate of probable cause to appeal
(Doc. 21-6), which the Georgia Supreme Court denied on September 17, 2024, issuing its
remittitur that same day. (Docs. 21-7; 21-8).
Petitioner, pro se, commenced this federal habeas action on September 17, 2025, in
the United States District Court for the Southern District of Georgia. (Doc. 1). The
Southern District transferred Petitioner’s habeas action to this Court on September 22,
2025. (Doc. 3). Petitioner filed an amendment raising supplemental grounds for relief on
January 2, 2026. (Doc. 16). Respondent answered (Doc. 19) and moved to dismiss the
petition as untimely. (Doc. 20). Following the Court’s order for response, Petitioner
responded and opposed the motion. (Doc. 23). For the reasons explained below,
Petitioner’s action is untimely and not subject to equitable tolling.
ANALYSIS
Untimeliness Under the AEDPA
Under the Antiterrorism and Effective Death Penalty Act or “AEDPA,” a one-year
limitation period applies to Section 2254 federal habeas petitions. Normally, as here, that
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limitation period begins to run as of 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. § 2244(d)(1)(A). To determine this date, the Court must “look to the actions taken
by the state court and the relevant state law” when determining whether the state direct
appellate review process has been completed. Chamblee v. Florida, 905 F.3d 1192, 1196
(11th Cir. 2018). The AEDPA further provides for statutory tolling of the limitation period
while a “properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment . . . is pending.” 28 U.S.C. § 2244(d)(2).
Petitioner’s conviction became final on October 8, 2003, the expiration of the
twenty-day time limit to seek certiorari to the Georgia Supreme Court following the
Georgia Court of Appeals’ decision on September 18, 2003. Stubbs v. Hall, 308 Ga. 354,
359–60 (2020); G
A. SUP. CT. R. 38(2). From that date, the AEDPA’s clock ran for 365
consecutive days through October 8, 2004, when it expired. Petitioner’s Section 2254
federal habeas petition, not filed until September 17, 2025, is more than twenty years out
of time. Petitioner’s state habeas petition could not have any tolling effect because that
petition was not filed until January 23, 2020—more than fifteen years after the limitations
period had expired.
Petitioner also appears to argue that he has new evidence such that the limitations
period should run, not from the date the judgment became final, but from the “date on
which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In support of this
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argument that his petition is timely under § 2244(d)(1)(D), Petitioner asserts that he “[a]fter
over two decades, it was pointed out to the plaintiff that an important piece of evidence in
confirming that the plaintiff was railroaded and discovered.” (Doc. 23, p. 5). Petitioner
contends that video evidence was hidden from the jury and that a police officer replaced
an exhibit with a different copy. (Id., pp. 5–6). Petitioner does not provide any evidentiary
support for this argument; nor does he explain how this “evidence” was not discovered
through the preceding fifteen years through the exercise of due diligence. As such, this
argument does not render this habeas petition timely.
Equitable Tolling or Other Savings Provisions
The AEDPA imitations period can be subject to equitable tolling. “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. Florida, 560 U.S. 631, 649 (2010) (internal quotations omitted).
“Equitable tolling is an extraordinary remedy [that] is applied sparingly.” Outler v. United
States, 485 F.3d 1273, 1280 (11th Cir. 2007). Further, Petitioner has the burden of proving
that equitable tolling is warranted. San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.
2011).
Although Petitioner does not specifically ask for equitable tolling, he does argue
that his untimeliness should be excused due to his attorney’s failure to advise him of his
right to habeas. (Doc. 23, pp 2–4). This argument is without merit because an attorney’s
failure to inform a petitioner of the limitations period to file a habeas petition does not
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warrant equitable tolling. Moore v. Frazier, 604 F. App’x 863, 868 (11th Cir. 2015)
(explaining that “pro se litigants, like all others, are deemed to know of the one-year statute
of limitations” and the Eleventh Circuit “ha[s] not accepted a lack of a legal education as
an excuse for a failure to file in a timely fashion”) (citations omitted); see Jones v. Odum,
No. 1:24-CV-99-LAG-TQL, 2025 WL 2477164, at *1 (M.D. Ga. Aug. 28, 2025).
Petitioner also fails to satisfy the first Holland prong because he cannot show he has been
pursuing his rights diligently. Indeed, it would be difficult for him to do so considering
more than fifteen years lapsed between the time Petitioner’s conviction became final and
when he filed his state habeas petition. Accordingly, equitable tolling is not applicable, and
Petitioner’s Section 2254 petition should therefore be dismissed as untimely.
CONCLUSION
For the reason discussed herein, it is RECOMMENDED that Respondent’s motion
to dismiss (Doc. 20) be GRANTED and this action be DISMISSED with prejudice.
Additionally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254
Cases, it does not appear that Petitioner has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–84
(2000). Therefore, it is further RECOMMENDED that a certificate of appealability be
DENIED.
OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this Recommendation, or seek an extension of time to file objections, WITHIN
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FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited
in length to TWENTY (20) PAGES. 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 are further 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 U.S.C. § 636(b)(1) waives
the right to challenge on appeal the district court’s order based on unobjected-to factual
and legal conclusions if the party was 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 RECOMMENDED, this 24th day of June, 2026.

s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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