STARLING v. MYERS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ALFRED STARLING, 	:
:
Petitioner, 	:
v. 	: 	Case No. 4:22-cv-30-CDL-AGH
:
Warden DARRIN MYERS, 	:
:
Respondent. 	:
________________________________ 	:
REPORT AND RECOMMENDATION
Before the Court is Petitioner’s motion for relief from judgment under Rule 60
of the Federal Rules of Civil Procedure (ECF No. 41). 	For the reasons explained
below, it is recommended that Petitioner’s motion be denied.
BACKGROUND
Following a jury trial, Petitioner was found guilty of armed robbery in the
Superior Court of Randolph County, Georgia. 	Resp’t’s Ex. 12, at 1, ECF No. 14-12.
On August 15, 2008, he was sentenced to twenty years in prison. 	Resp’t’s Ex. 2, ECF
No. 14-2. 	The Georgia Court of Appeals affirmed his conviction on October 4, 2017.
Resp’t’s Ex. 12, at 1. 	Petitioner 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. 	Petitioner filed a state habeas petition in the Superior Court of Mitchell
County, Georgia, on October 2, 2018. 	Resp’t’s Ex. 3, at 1, ECF No. 14-3. 	The state
habeas court denied the petition on March 10, 2021. 	Resp’t’s Ex. 5, at 1, ECF No.
14-5. 	Petitioner filed a petition for a certificate of probable cause with the Georgia
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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. 	Petitioner 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.
Petitioner filed his federal habeas application on December 20, 2021. 	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). 	The
Court recommended that the motion be granted on August 16, 2022. 	Order & R. 1,
ECF No. 24. 	The Court’s recommendation was adopted on October 17, 2022, and a
judgment entered on his petition the same day (ECF Nos. 29, 30). 	The United States
Court of Appeals for the Eleventh Circuit denied a certificate of appealability on May
10, 2023 (ECF No. 38). 	The United States Supreme Court denied his petition for a
writ of certiorari on January 8, 2024, and his petition for rehearing on March 18, 2024
(ECF Nos. 39, 40).
Petitioner filed his motion for relief from judgment on August 12, 2025.1 	Mot.
for Relief from J. 9, ECF No. 41. 	Petitioner contends he is entitled to relief from
judgment based on newly discovery evidence and fraud. 	Mot. for Relief from J. 4-5.
1 Although the Court received the motion on August 20, 2025, Petitioner signed it on August 12, 2025.
Mot. for Relief from J. 9. 	“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.
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He argues that the indictment submitted into evidence by Respondent was fraudulent
because it did not contain the state court clerk’s time stamp or signature as required
by O.C.G.A. § 15-6-61(a)(3). 	Id. at 2. 	He also argues the indictment was fraudulent
because it lists LaTonya Wright Bivins-Zackery—who Petitioner states knows him
and his family “very well”—as one of the grand jurors who returned the indictment,
when in fact, she not part of the grand jury that indicted him.2 	Id. at 3-4. 	He has
submitted and affidavit signed by Bivins-Zackery, wherein she avers:
To the best of my knowledge, I have no recollection [] of ever serving on
a grand jury in Randolph County Superior Court, during the term of
May, 2008, that voted to return a true bill indictment, indicting Mr.
Alfred W. Starling of any crime. 	Many years have passed, but I do not
have any memory of ever being selected as a grand jury [sic] (LaTonya
Wright-Bivins) who indicated [sic] Mr. Starling.
Pet’r’s Ex. 2, ECF No. 41-5. 	Petitioner contends this Court’s judgment is “void”
because the above-described “fraud.” 	Mot. for Relief from J. 6-7.
DISCUSSION
A district court may relieve a party from a final judgment on the following
grounds:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) 	fraud 	(whether 	previously 	called 	intrinsic 	or 	extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
2 The indictment lists Bivins-Zackery’s former name, “Latonya Wright Bivins.” 	Pet’r’s Ex. 2, ECF
No. 41-5.
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Fed. R. Civ. P. 60(b). 	A motion under Rule 60(b) “must be made within a reasonable
time—and for reasons (1), (2), and (3) no more than one year after the entry of the
judgment or the date of the proceeding.” 	Fed. R. Civ. P. 60(c)(1). 	“This one-year
limitation is not tolled by filing an appeal.” 	Pierce v. Kyle, 535 F. App’x 783, 784
(11th Cir. 2013) (citing Transit Cas. Co. v. Security Trust Co., 441 F.2d 788, 791 (5th
Cir. 1971)). 	However, “[t]his rule does not limit a court’s power to . . . set aside a
judgment for fraud on the court.” 	Fed. R. Civ. P. 60(d)(3).
The 	Court 	recommends 	denying 	Petitioner’s 	motion 	for 	several 	reasons.
Initially, the Court notes that Petitioner’s assertions are factually flawed. 	The
indictment—which he states is invalid because it is missing the clerk’s filed-stamp
and signature—is the same one in the record when the Court dismissed his petition.
Resp’t’s Ex. 1, ECF No. 14-1; Pet’r’s Attach. 3, ECF No. 41-3. 	Thus, it is not “newly
discovered” evidence. 	Moreover, even if the indictment should have had a state court
clerk’s stamp and signature under Georgia law—an assertion on which the Court
takes no position—he does not explain how that makes it “fraudulent” as opposed to
just being arguably defective. 	And if Petitioner felt the indictment was defective
under Georgia law, his remedy was to file an appropriate motion in the state court,
pursue his available state remedies, and then, after exhausting those, raise it as a
ground in a timely federal habeas petition. 	He failed to do so.
In addition, contrary to Petitioner’s assertion, Ms. Bivins-Zackery’s affidavit
does not state she never served on the grand jury that returned Petitioner’s
indictment; she only states that “[m]any years have passed” and she has no
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recollection of doing so. 	Pet’r’s Ex. 2. 	Further, the Court notes that Georgia law
only requires that a grand jury consist of sixteen person and the vote of twelve to
indict. 	O.C.G.A. § 15-12-61(a). 	Even if Bivins-Zackery was not on his grand jury,
Petitioner has not shown that a sufficient number of grand jurors were not present
or did not vote to indict him. 	See Ellis v. State, 181 Ga. App. 630, 634 (1987)
(affirming denial of motion to quash indictment where the appellant showed that two
of twenty-three grand jurors did not vote but did not show that the remaining twenty-
one failed to do so).
Petitoner’s motion must also be rejected as untimely. 	A motion for relief from
judgment under Rule 60(b) based on newly discovered evidence or fraud must be
brought within one year of judgment. 	Fed. R. Civ. P. 60(c)(1). 	Even one based on
the other enumerated Rule 60(b) grounds must be “made within a reasonable time.”
Id. 	Judgment was entered in this case on October 17, 2022, Bivins-Zackery signed
her affidavit on April 13, 2024, and Petitioner did not file his motion until August 12,
2025. 	Judgment, ECF No. 30; Pet’r’s Ex. 2; Mot. for Relief from J. 9. 	In other words,
Petitioner filed his Rule 60 motion over two and a half years after judgment in this
case 	and 	a 	year 	and 	three 	months 	after 	Bivins-Zackery 	signed 	her 	affidavit.
Petitioner’s motion is thus untimely by any measure.
Further, Petitioner is not entitled to relief under Rule 60(b)(4) based on a void
judgment. 	A “void judgment” entitling a party to relief from judgment is “one so
affected by a fundamental infirmity that the infirmity may be raised even after the
judgment becomes final. The list of such infirmities is exceedingly short; otherwise,
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Rule 60(b)(4)’s exception to finality would swallow the rule.” 	Bainbridge v. Governor
of Fla., 75 F.4th 1326, 1335 (11th Cir. 2023) (quotation marks omitted). 	“A judgment
is not void simply because it is or may have been erroneous,” but “[i]nstead, Rule
60(b)(4) applies only in the rare instance where a judgment is premised either on a
certain type of jurisdictional error or on a violation of due process that deprives a
party of notice or the opportunity to be heard.” 	Id. (internal citation and quotation
marks omitted). 	Here, the Court did not lack jurisdiction to rule on Petitioner’s
habeas petition, and the Petitioner was provided the opportunity to be heard, as
evidence by his response to Respondent’s motion to dismiss (ECF No. 15).
Finally, Petitioner’s contention that judgment can be set aside under Rule
60(d)(3) for “fraud on the court,” is misplaced. 	Even assuming that Respondent’s
submission of the indictment as an exhibit somehow constituted fraud—which the
Court does not find—Petitioner cannot show how it impacted the Court’s dismissal of
his petition. 	See Gupta v. U.S. Att’y Gen., 556 F. App’x 838, 841 (11th Cir. 2014)
(“Because the fraud allegations are unrelated to the underlying determination that
the court lacked subject matter jurisdiction, the district court did not abuse its
discretion by denying the Rule 60(d)(3) motion.”). 	Here, the Court’s dismissal of
Petitioner’s habeas application had nothing to do with his indictment but the simple
fact that it was untimely. 	Therefore, Rule 60(d)(3) provides no grounds for relief for
Petitioner.3
3 Petitioner appears to confuse the issue of whether this Court’s judgment was obtained through fraud
with whether the state court judgment was obtained through fraud. 	See Mot. for Relief from J. 2
(citing state court transcript where the indictment was read to Petitioner); Pet’r’s Ex. 1, ECF No. 41-
4. 	Again, any challenges to the indictment and resulting state court judgment should have first been
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CONCLUSION
For the reasons stated above, it is recommended that Petitioner’ motion (for
relief from judgment (ECF No. 41) be DENIED. 	Pursuant to 28 U.S.C. § 636(b)(1),
Petitioner 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.
Petitioner is 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 9th day of January, 2026.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
exhausted in the state court and then raised in a timely federal habeas petition.
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