TORRES v STATE OF GEORGIA

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
ANDREW BLASE TORRES, 	:
:
Petitioner, 	:
v. 	: 	Case No. 3:25-cv-38-CDL-AGH
:
TYRONE OLIVER, 	:
:
Respondent. 	:
________________________________ 	:
REPORT AND RECOMMENDATION
Before the Court is Respondent’s motion to dismiss Petitioner’s application for
habeas relief (ECF Nos. 12, 1). 	For the reasons described below, it is recommended
that Respondent’s motion be granted and Petitioner’s application for habeas corpus
relief under 28 U.S.C. § 2254 be dismissed.
BACKGROUND
Following a jury trial in 2017, Petitioner was convicted in the Superior Court of
Walton County, Georgia of one count of forcible rape, four counts of incest, two counts
of aggravated child molestation, and one count of aggravated sexual battery. 	Torres
v. State (“Torres I”), 353 Ga. App. 470, 470 (2020); Pet. 1, ECF No. 1. 	The trial court
sentenced Petitioner to four consecutive life sentences on the rape, aggravated child
molestation, and aggravated sexual battery counts and one hundred and sixty years of
consecutive confinement on the four incest counts. 	Torres I, 353 Ga. App at 475.
Petitioner filed a motion for new trial, which was denied. 	Id. 	On January 23, 2020,
the 	Georgia 	Court 	of 	Appeals 	affirmed 	Petitioner’s 	conviction 	but 	vacated 	and
remanded his sentences on the incest counts because the trial court failed to include a
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split sentence of confinement and probation as required under Georgia law. 	Id. at
487; see O.C.G.A. § 17-10-6.2(a)(8), (b) (requiring that a person convicted of incest be
sentenced to a split sentence, which shall include any mandatory term of imprisonment
plus an additional probated sentence of at least one year). 	On resentencing, the trial
court modified Petitioner’s sentence to include one year of probation on each incest
count. 	Torres v. State (“Torres II”), 358 Ga. App. 179, 179-80 (2021). 	On January 27,
2021, the Georgia Court of Appeals affirmed his sentence. 	Id. 	According to a search
of the Georgia Court of Appeals and Georgia Supreme Court dockets, Petitioner neither
filed a motion for reconsideration with the Georgia Court of Appeals nor a petition for
a writ of certiorari to the Supreme Court of Georgia.1
On June 27, 2022, Petitioner filed an extraordinary motion for new trial in the
Superior Court of Walton County, which dismissed the motion on July 18, 2022.
Resp’t’s Ex. 3, at 1, ECF No. 13-3; Resp’t’s Ex. 4, ECF No. 13-4. 	Petitioner filed a state
habeas petition in the Superior Court of Baldwin County, Georgia, on November 10,
2022. 	Resp’t’s Ex. 5, at 1, ECF No. 13-5. 	According to the parties, that action is still
pending. 	Resp’t’s Br. in Supp. of Mot. to Dismiss 2, ECF No. 12-1; Pet’r’s Mot. to Stay
1, ECF No. 16.
Petitioner filed his original federal habeas application on March 3, 2025.2 	Pet.
1 The Georgia Court of Appeals docket shows that Petitioner filed a motion to set aside a void sentence
in the trial court in 2024, which was denied. 	Order, Torres v. State (“Torres III”), A25A0015 (Ga. Ct.
App. Aug. 29, 2024). 	Petitioner appealed the denial, and the Georgia Court of Appeals dismissed his
appeal on August 29, 2024. 	Id. 	Petitioner filed a petition for certiorari with the Georgia Supreme
Court, which denied the petition on January 14, 2025. 	Georgia Court of Appeals, Docket Search, Case
No. A25A0015, 	https://www.gaappeals.gov/wp-content/themes/benjamin/docket/results
_one_record.php?docr_case_num=A25A0015 (last visited Jan. 6, 2025). 	None of these filings affect the
timeliness of Petitioner’s federal habeas application.
2 Although the Court received the habeas application on March 6, 2025, Petitioner signed it on March
3, 2025. 	Pet. 12. 	“Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed on the
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12. 	Respondent filed an answer (ECF No. 11) and motion to dismiss the petition (ECF
No. 12) on July 14, 2025. 	On July 15, 2025, the Court notified Petitioner of his right
to respond to the motion to dismiss within thirty days and instructed him that his
failure to rebut any arguments made by Respondent could result in those arguments
“being accepted as uncontested and correct.” 	Order 1-2, ECF No. 15. Petitioner did
not file a response to the motion to dismiss, but on July 28, 2025, he filed a motion to
stay the case until he could complete his state habeas proceedings. 	Pet’r’s Mot. to
Stay 1. 	Respondent’s motion to dismiss is ripe for review.
DISCUSSION
Respondent moves to dismiss Petitioner’s habeas petition on two grounds.
First, he contends that Petitioner’s petition is untimely. 	Resp’t’s Br. In Supp. of Mot.
to Dismiss 2-5. 	Second, he contends that Petitioner has failed to exhaust his available
state remedies. 	Id. at 5-7. 	Because the Court agrees that Petitioner’s federal habeas
application is untimely, it recommends dismissal on that ground and declines to
address exhaustion.
I. 	The Applicable Limitations Period
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) was enacted
primarily to put an end to the unacceptable delay in the review of prisoners’ habeas
petitions. 	See Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia, J.,
dissenting) (“The purpose of the AEDPA is not obscure. 	It was to eliminate 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.
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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 therefore instituted a one-
year limitations period for the filing of a “writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.” 	28 U.S.C. § 2244(d)(1). 	As relevant here,
the limitations period begins to run from “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). 	Additionally, the limitations period is tolled
while a petitioner’s “properly filed application for State post-conviction or other
collateral review” is pending. 	Id. § 2244(d)(2).
II. 	Petitioner’s Habeas Application is Untimely
Petitioner’s application for federal habeas relief is untimely. 	The Georgia
Court of Appeals affirmed his modified sentence on January 27, 2021. 	Torres II, 358
Ga. App. At 179. 	Petitioner had ten days to file a motion for reconsideration with the
Georgia Court of Appeals or twenty days—until February 16, 2021—to file a petition
for a writ of certiorari in the Georgia Supreme Court. 	Ga. R. App. Ct. 37(b); Ga. Sup.
Ct. R. 38(2). 	Petitioner did neither, and therefore, as of February 17, 2021, his
conviction was final for AEDPA purposes. 	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 February 17, 2021, and expired on February
17, 2022. 	Petitioner did not file his federal habeas petition until March 3, 2025, which
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is over three years after expiration of the AEDPA limitations period.
Even assuming Petitioner’s extraordinary motion for new trial would otherwise
qualify for tolling under 28 U.S.C. § 2244(d)(2), it has no bearing on whether
Petitioner’s federal habeas application is timely because it was not filed until over four
months after his AEDPA limitations period expired. 	The same is true for his state
habeas application which was not filed until just short of eight months after expiration
of the filing deadline. 	See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000)
(explaining that “[a] state-court petition . . . that is filed following the expiration of the
limitations period cannot toll [the AEDPA] period because there is no period remaining
to be tolled”). 	Accordingly, Petitioner is not entitled to statutory tolling under
28 U.S.C. § 2244(d)(2), and his petition is untimely.
III. 	Petitioner is Not Entitled to Equitable Tolling
Petitioner 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).
Petitioner did not respond to Respondent’s motion to dismiss to argue why he is
entitled to equitable tolling. 	Further, his petition does not present any grounds for
equitable tolling. Therefore, he is not entitled to equitable tolling, and his petition
should be dismissed.
IV. 	Certificate of Appealability
Rule 11(a) of Rules Governing Section 2254 Cases in the United States District
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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. § 2253(c)(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.” 	Slack v. McDaniel,
529 U.S. 473, 478 (2000). 	Petitioner cannot meet this standard and a certificate of
appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that Respondent’s motion to
dismiss (ECF No. 12) be GRANTED and that Petitioner’s application for a writ of
habeas corpus (ECF No. 1) be dismissed as untimely. 3 	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 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
3 Petitioner filed a motion to stay this case until the conclusion of his state habeas proceedings. 	Pet’r’s
Mot. to Stay 1. 	Because exhaustion of his state habeas remedies would not cure the untimeliness of
his federal habeas petition, the Court recommends that this motion (ECF No. 16) be DENIED.
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made. 	All other portions of the Recommendation may be reviewed for clear error.
The parties are 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 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 8th day of January, 2026.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
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