Opinion
Civil Action 1:24-CV-00646-SDG-RDC
02-26-2024
MICHAEL DAVIS, Petitioner, v. UNKNOWN, Respondent.
PRISONER HABEAS CORPUS 28 U.S.C. § 2254
ORDER AND FINAL REPORT AND RECOMMENDATION
REGINA D. CANNON, UNITED STATES MAGISTRATE JUDGE
Petitioner Michael Davis, confined at Augusta State Medical Prison in Grovetown, Georgia, filed a letter docketed by the Clerk as a 42 U.S.C. § 1983 complaint. (Doc. 1.) Upon review of the letter, the Court concludes that the letter is best read as one raising claims under habeas. Accordingly, the Clerk is DIRECTED to reclassify this action as pursuant to 28 U.S.C. § 2254. Petitioner did not pay the $5.00 filing fee required for habeas actions or submit an application for leave to proceed in forma pauperis, but the Court will GRANT leave to proceed in forma pauperis for the purpose of dismissal only.
This matter is before the Court for a preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Summary dismissal of a habeas petition under Rule 4 is proper when the petition and the attached exhibits plainly reveal that relief is not warranted. See McFarland v. Scott, 512 U.S. 849, 856 (1994) (stating that Rule 4 dismissal is appropriate when petition “appears legally insufficient on its face”); Paez v. Sec'y, Fla. Dep't of Corr., 947 F.3d 649, 654 (11th Cir. 2020) (holding that Rule 4 authorizes dismissal for procedural defects such as untimeliness).
For the reasons stated below, it is RECOMMENDED that this action be DISMISSED without prejudice for failure to exhaust state remedies.
I. Discussion
Before a federal court may grant a § 2254 petition, a state prisoner seeking federal habeas relief must first exhaust his state court remedies or show that a state corrective process is unavailable or ineffective to protect his rights. 28 U.S.C. § 2254(b)(1). To exhaust, the petitioner must present his claims, on direct appeal or collateral review, to the highest state court according to that state's appellate procedure. Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010). If the petitioner has not exhausted all of his claims in state court, the federal court must, except in limited circumstances, dismiss the petition without prejudice. Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1214 (11th Cir. 2014).
A court may sua sponte dismiss a petition for failure to exhaust. See Paez v. Sec'y, Fla. Dep't of Corr., 947 F.3d 649, 654 (11th Cir. 2020) (explaining that “[b]oth a procedural bar and a merits-based deficiency could lead a district court to conclude that the petitioner is not entitled to relief,” thereby leading to summary dismissal under Rule 4 (internal quotation marks omitted)); Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995) (explaining that “the district court may invoke the bar” of failure to exhaust state remedies “sua sponte where, notwithstanding the state's waiver, requiring the petitioner to return to state court to exhaust his claims serves an important federal interest”); see also Allen v. Zavaras, 568 F.3d 1197, 120203 (10th Cir. 2009) (affirming sua sponte dismissal of § 2254 petition for failure to exhaust); Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998) (observing that “there is no doubt that a federal court may raise sua sponte a petitioner's failure to exhaust state law remedies and apply that doctrine to bar federal litigation of petitioner's claims until exhaustion is complete”).
Here, Petitioner filed a state habeas petition in the Superior Court of Fulton County, which was transferred to the Superior Court of Richmond County in January 2023. (Doc. 1 at 2.) He states that since the case was transferred, the judge assigned to his case has not taken any action on the petition, and as a result, he wishes to have his petition adjudicated in this Court. (Id. at 1.) According to records from the Superior Court of Cobb County, Petitioner was convicted in 2010 of trafficking cocaine, possession of cocaine, and possession of a firearm during the commission of a crime. Sentence, Doc. 80, State v. Davis, No. 10903373, Cobb Cnty. Clerk of Superior Ct., https://ctsearch.cobbsuperiorcourtclerk.com/ (filed Nov. 29, 2010); id., Sentence, Doc. 81. In addition, records from the Georgia Department of Corrections indicate that Petitioner is currently incarcerated for those convictions. Find an Offender, Ga. Dep't of Corr., https://services.gdc.ga.gov/GDC/OffenderQuery/jsp/OffQryForm.jsp (last visited Feb. 23, 2024) (GDC ID 248482).
Petitioner claims that he does not have a state conviction and points to the transfer order from the Superior Court of Fulton County, which states that Petitioner “is not incarcerated under sentence of a state court of record.” (Doc. 1 at 1, 2.) As discussed above, however, records from the Superior Court of Cobb County and the Georgia Department of Corrections show otherwise. It is possible that the Superior Court of Fulton County meant that Petitioner was not incarcerated under a sentence imposed by that particular court.
Petitioner, by his own admission, has not fully exhausted his state-court remedies by allowing the state habeas court to rule on his petition. Cf. Turner v. Sec'y, Dep't of Corr., 991 F.3d 1208, 1212 (11th Cir. 2021) (holding that a district court may determine timeliness of a § 2254 petition based solely on statements by the petitioner). Nevertheless, he essentially claims that exhaustion should be excused due to an absence of an available state corrective process, as his case has been pending for over a year without any action from the court. (Doc. 1 at 1-2.) However, although Petitioner is correct that exhaustion of 28 U.S.C. § 2254 petitions can be excused as a result of undue delay from the state habeas court, see 28 U.S.C. § 2254(b)(1)(B)(i) (providing that federal habeas relief may be granted when “there is an absence of available State corrective process”); Reid v. Nail, No. 321CV00099CDLCHW, 2022 WL 1397194, at *1 (M.D. Ga. Mar. 17, 2022) (considering a six-year delay in processing a state habeas case), report and recommendation adopted, No. 3:21-CV-99-CDL-CHW, 2022 WL 1320710 (M.D. Ga. May 3, 2022), a delay of a little over a year is not so extreme as to permit this Court to find the “State corrective process” unavailable, see Hughes v. Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986) (requiring exhaustion despite an “eight-year delay in the state's ruling on Hughes' habeas corpus petition”); Reid, 2022 WL 1397194, at *1 (applying Hughes and requiring exhaustion despite a six-year delay in ruling on the petitioner's case). As a result, Petitioner has not exhausted his state remedies as required by § 2254(b)(1), and this action is subject to dismissal.
Given that Petitioner was convicted in 2010, it would appear that the instant § 2254 petition is also untimely. See § 2244(d). However, because this action is due to be dismissed as unexhausted, the Court need not consider this issue further.
II. Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.... If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Section 2253(c)(2) states that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” A substantial showing of the denial of a constitutional right “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim . . . a certificate of appealability should issue only when the prisoner shows both 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.Jimenez v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (citing Slack, 529 U.S. at 484) (internal quotation marks omitted).
It is RECOMMENDED that a certificate of appealability be DENIED because resolution of the issues presented is not debatable. If the District Judge adopts this recommendation and denies a certificate of appealability, Petitioner is advised that he “may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C. foll. § 2254, Rule 11(a).
III. Conclusion
For the reasons stated above, it is ORDERED that Petitioner be GRANTED leave to proceed in forma pauperis for the purpose of dismissal only, and it is RECOMMENDED that this action be DISMISSED without prejudice for failure to exhaust state remedies and a certificate of appealability be DENIED.
The Clerk is DIRECTED to terminate the referral to the undersigned.
IT IS SO ORDERED