Opinion
5:23-cv-00403-MTT-MSH
07-31-2024
JARED RANDALL CARTER, Petitioner, v. TYRONE OLIVER, Respondent.
ORDER AND RECOMMENDATION
AMELIA G. HELMICK, UNITED STATES MAGISTRATE JUDGE
Before the Court is Petitioner's application for habeas corpus relief (ECF No. 1) under 28 U.S.C. § 2254 and Respondent's motion to dismiss (ECF No. 13). For the reasons explained below, it is recommended that Petitioner be ordered to elect between the dismissal of his petition in its entirety to pursue his unexhausted claims in state court or to proceed solely on his one exhausted claim.
BACKGROUND
Petitioner is an inmate at Jenkins Correctional Facility in Millen, Georgia. Pet. 1, ECF No. 1. On June 12, 2018, a grand jury returned an indictment in the Superior Court of Houston County, Georgia, charging Petitioner with one count each of malice murder, felony murder, aggravated assault, and possession of a knife during the commission of a felony. Resp't's Ex. 1, at 1-3, ECF No. 15-1.Following a jury trial commencing on April 6, 2021, Petitioner was found guilty on all four counts. Resp't's Ex. 2, at 1, ECF No. 15-2; Carter v. State, 315 Ga. 214, 215 n.1 (2022). Petitioner was sentenced to life in prison with the possibility of parole for malice murder and five years consecutive imprisonment for the knife charge. Id. The felony murder conviction was vacated by operation of law and the aggravated assault count merged into the malice murder count. Id. Following the denial of his motion for new trial, Petitioner timely appealed his conviction to the Supreme Court of Georgia. Carter, 315 Ga. at 215 n.1. On appeal, Petitioner raised three enumerations of error: (1) the evidence was insufficient to convict him of the offenses; (2) trial counsel was ineffective for failing to object to hearsay evidence; and (3) out-of-court statements of the deceased victim were improperly admitted into evidence. Id. at 215, 219-20; Resp't's Ex. 3, at 9, ECF No. 15-3. The Supreme Court of Georgia affirmed his convictions on November 29, 2022. Carter, 315 Ga. at 214. Petitioner did not file a state habeas petition. Pet. 3.
Because all documents have been electronically filed, this Order and Recommendation cites to the record by using the document number and electronic screen page number shown at the top of each page by the Court's CM/ECF software and not to any other page number that may appear on the documents.
The United States District Court for the Southern District of Georgia received Petitioner's federal habeas application (ECF No. 1) on October 11, 2023. The case was transferred to this Court (ECF No. 6) on October 16, 2023. Petitioner amended his petition on December 15, 2023 (ECF No. 10). He raises four grounds for relief: (1) “[t]he evidence;”(2) trial counsel was ineffective for not properly redacting a video of his testimony; (3) the “State of Georgia representatives” violated their constitutional oath through various actions; and (4) his indictment was illegal. Pet. 5, 7-8, 10. Respondent answered (ECF No. 12) the petition on January 25, 2024, and also moved to dismiss the petition, contending Petitioner failed to exhaust his available state remedies. Resp't's Mot. to Dismiss 2, ECF No. 13. Petitioner timely responded (ECF Nos. 18, 22) to the motion to dismiss. The petition and motion to dismiss are ripe for review.
The Court will address this cryptic description below.
DISCUSSION
I. Habeas Exhaustion Standard
The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “limits the power of a federal court to grant a writ of habeas corpus vacating the conviction of a state prisoner on the ground that the conviction was obtained in violation of the Constitution of the United States.” Hardy v. Comm'r, Ala. Dep't of Corr., 684 F.3d 1066, 1074 (11th Cir. 2012). One of those limitations is that a district court “may not grant such applications unless . . . the applicant has exhausted state remedies.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citing 28 U.S.C. § 2254(b)-(c)). A state prisoner is required (with few exceptions) to “exhaust[] his state remedies by presenting his constitutional claim to the State courts, to afford them an opportunity to correct any error that may have occurred.” Hardy, 684 F.3d at 1074.
“A failure to exhaust occurs . . . when a petitioner has not ‘fairly presented' every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review.” Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam)). The exhaustion requirement thus reflects a policy of comity between state and federal courts and “reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (internal quotation marks omitted). “If a petitioner fails to exhaust his state remedies, a district court must dismiss the petition without prejudice to allow for such exhaustion.” Gore v. Crews, 720 F.3d 811, 815 (11th Cir. 2013) (per curiam). The exhaustion requirement also calls for allowing the state courts one complete round of appellate review, even if state supreme court review is discretionary. O'Sullivan, 526 U.S. at 845; see Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004) (per curiam). “When non-exhaustion is asserted by the respondent, the burden is upon the petitioner to come forward with documentation demonstrating that the instant claims have been exhausted.” Simmons v. Decker, No. 3:04cv436/RS, 2006 WL 3667279, at *5 (N.D. Fla. Dec. 12, 2006) (citing Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S. 391, 435 (1963)); see also Ellison v. White, No. 5:18-cv-00381-MTT-CHW, 2019 WL 7759272, at *2 (M.D. Ga. Oct. 2, 2019), recommendation adopted by 2020 WL 448226 (M.D. Ga. Jan. 28, 2020) (citing Darr and concluding Petitioner failed to exhaust state remedies).
II. Petitioner's Exhausted and Unexhausted Claims
Here, Petitioner clearly failed to exhaust grounds two through four of his federal petition. He did not raise these grounds in the Supreme Court of Georgia, and he did not file a state habeas petition. But exhaustion is unclear for his first ground. Petitioner lists Ground One as simply, “The evidence.” Pet. 5. For supporting facts, he identifies “[t]he evidence provided by Houston County Superior Court. Also there is evidence that the Judge withheld from the jury.” Id. No additional information or explanation is provided, and it is unclear what Petitioner means by “the evidence.” If Petitioner is contending the evidence was insufficient to support the verdict, then that ground was exhausted in the Supreme Court of Georgia. Though, Petitioner makes no argument as to why that court's decision was unreasonable. See Green v. Nelson, 595 F.3d 1245, 1253 (11th Cir. 2010) (“AEDPA requires that we defer to the state court's decision on this issue, unless we find that it was an unreasonable application of or contrary to Supreme Court precedent or that it involved an unreasonable determination of the facts in light of the evidence presented.” (citing 28 U.S.C. § 2254(d)).
If, however, he is contending there was evidence improperly admitted or not admitted at trial, that ground was not raised in the Supreme Court of Georgia. Petitioner's supporting brief adds no clarity, consisting primarily of some sort of document regarding “Administrative Notice.” Pet'r's Br. in Supp. of Pet. 1-21, ECF No. 2. The only arguably relevant information is six pages of DNA analysis, but Petitioner does not tie it to any particular ground for relief. Id. at 25-30. He also filed an amended petition, which appears to be a supplement to Ground Three of his petition, wherein he contends he was denied the right to a speedy trial, denied the right to compulsory process for witnesses, and subjected to excessive bail-none of which were raised in his direct appeal to the Supreme Court of Georgia. Am. Pet. 13, ECF No. 10; Resp't's Ex. 3, at 9. Finally, Petitioner's response to the motion to dismiss involves a nonsensical discussion of the incorporation of his name. Pet'r's Resp. to Mot. to Dismiss 1, ECF No. 18. Nevertheless, out of an abundance of caution, the Court will construe Ground One as raising the sufficiency of the evidence. Because this claim was exhausted, the Court is left with a mixed petition, containing exhausted and unexhausted claims.
“Ordinarily, a mixed petition . . . should be dismissed without prejudice to allow the petitioner to either exhaust state remedies, bring a new petition presenting only the exhausted claims, or amend the petition to remove any unexhausted claims.” Isaac v. Augusta SMP Warden, 470 Fed.Appx. 816, 818-19 (11th Cir. 2012) (per curiam) (quotation marks omitted) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)). However, “[i]n the event that such a dismissal would result in any subsequent petition being time-barred . . . the district court may employ a ‘stay-and-abeyance' procedure, whereby the court would stay the timely filed petition and hold it in abeyance while the petitioner returns to state court to exhaust all of his previously unexhausted claims.” Id. at 819 (quoting Rhines v. Weber, 544 U.S. 269, 275 (2005)). “This procedure should be available only in limited circumstances, but is appropriate where (1) there was good cause for the petitioner's failure to exhaust his claims first in state court, (2) the unexhausted claims are not plainly meritless, and (3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. (citing Rhines, 544 U.S. at 277-78). If a district court determines a stay is not appropriate, it “should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.” Rhines, 544 U.S. at 278.
In this case, dismissing Petitioner's petition would result in any subsequent petition being time barred. AEDPA provides a one-year statute of limitations for filing federal habeas petitions. Specifically, it states:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. ...
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). The limitations period begins to run on “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).
Petitioner's convictions were affirmed by the Supreme Court of Georgia on direct appeal on November 29, 2022. His convictions were “final” on February 28, 2023, when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court expired. See U.S. Sup.Ct. R. 13(1); Bond v. Moore, 309 F.3d 770, 774 (11th Cir.2002) (holding that AEDPA's statute of limitations does not begin to run until the 90-day window for seeking a writ of certiorari in the Supreme Court expires). Therefore, the deadline for Petitioner to file his federal habeas petition was February 28, 2024. He timely filed his petition on October 5, 2023.However, the filing of a federal habeas petition does not toll the running of the AEDPA limitations period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Therefore, if Petitioner's current federal habeas petition is dismissed without prejudice, any subsequent petition would be untimely. At the same time, however, a stay is inappropriate because Petitioner has not shown good cause for failing to exhaust his claims in state court prior to bringing his federal petition.
Although the Court received the habeas application on October 11, 2023, Petitioner signed it on October 5, 2023. Pet. 15. “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.
Therefore, the Court RECOMMENDS Petitioner be given an option to either dismiss his unexhausted claims and proceed solely on Ground One, or have the Court dismiss his petition in its entirety to return to state court and pursue his unexhausted claims. If Petitioner chooses the first option, he should also be instructed to file an amended petition regarding Ground One to explain why he believes the Supreme Court of Georgia's ruling on his challenge to the sufficiency of the evidence was erroneous. He should also be notified that if he chooses the first option, then he would likely be barred from raising those dismissed claims in a future federal petition. Similarly, if he dismisses his current federal petition in its entirety, any future petition would be time-barred by the statute of limitations.
Petitioner filed two motions for hearings on his petition (ECF Nos. 19, 24). In light of this recommendation, those motions are DENIED without prejudice.
CONCLUSION
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 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 ORDERED and RECOMMENDED.