Opinion
5:21-CV-00038-MTT-MSH
06-07-2021
JOSEPH FORD, Petitioner, v. UNKNOWN RESPONDENT, Respondent.
RECOMMENDATION OF DISMISSAL
Stephen Hyles, United States Magistrate Judge
In accordance with the Court's previous orders and instructions, pro se Petitioner Joseph Ford, an inmate currently confined in the Baldwin County Jail in Milledgeville, Georgia, has filed a Recast Petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (ECF No. 12) and a motion for leave to proceed in forma pauperis (ECF No. 13).
Under the rules governing habeas corpus actions, district courts are required to promptly examine every application filed and thereafter enter a summary dismissal “[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 28 U.S.C. § 2254 Rule 4; see also McFarland v. Scott, 512 U.S. 849, 856 (1994); 28 U.S.C. § 2243. This review establishes that it is plain on the face of the Recast Petition that Petitioner is not now entitled to relief in this Court. Accordingly, it is RECOMMENDED that this action be DISMISSED without prejudice and that Petitioner's pending motions (ECF Nos. 1, 9, 13) be DENIED as moot.
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) (citing Cullen v. Pinholster, 563 U.S. 170, 181 (2011); 28 U.S.C. § 2254(b)-(c)). One of those limitations is that a district court “may not grant such applications unless . . . the applicant has exhausted state remedies.” Cullen, 563 U.S. at 181. 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) (internal alterations omitted); 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 ‘unseem[liness]' 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) (alteration in original). “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).
In this case, it is plain from the face of the Recast Petition that Petitioner has failed to fully exhaust. As noted in the Court's April 15, 2021 Order, it was unclear from the original Petition whether Petitioner had made any efforts to challenge his probation revocation in the state courts, and Petitioner was instructed to address this issue in his Recast Petition. Order 2, Apr. 15, 2021, ECF No. 11. In his Recast Petition, Petitioner answered “No” to the question, “Did you appeal from the judgment of conviction?” Recast Pet. 2, ECF No. 12. Additionally, when asked whether he sought “further review by a higher state court[, ]” Petitioner appears to have marked “Yes” and “No, ” but clarified that he had only sought review by filing the above-captioned action in this Court-which is a federal court and not a state court. Id.; see also Id. at 6, 8, 11 (indicating that the only post-conviction proceeding Plaintiff has pursued has been in this Court). Petitioner also answered “No” when asked whether he had “previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court[.]” Id. at 3. And he answered “No” when asked whether he “appeal[ed] to the highest state court having jurisdiction over the action taken on your petition, application, or motion[, ]” explaining that he does not “understand how to go about the appeal.” Id. at 5.
Georgia law provides Petitioner with at least one method to challenge his probation revocation in the Georgia state courts. See, e.g., Layson v. Montgomery, 251 Ga. 359, 359 (1983) (prisoner filed state habeas corpus petition to challenge probation revocation). Because Petitioner acknowledges that he failed to pursue any remedy in the Georgia state courts, he has failed to fully exhaust. The failure to exhaust cannot be cured by providing Petitioner an opportunity to amend, and thus it is RECOMMENDED that Petitioner's application be DISMISSED without prejudice and that his pending motions (ECF Nos. 1, 9, 13) be DENIED as moot. Petitioner would be permitted to return to federal court if necessary after affording the State a full opportunity to review his grounds for relief.
It is also RECOMMENDED that a certificate of appealability (“COA”) be DENIED in this case. Petitioner has no absolute entitlement to appeal a dismissal of his claims. Before he may appeal, the district court must first issue a COA. See 28 U.S.C. § 2253(c)(1); 28 U.S.C. § 2254, Rule 11(a). If “the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, ” a COA will not be issued unless the prisoner can show, at least, “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). Because it is clear on the face of this application that Petitioner failed to exhaust available state judicial remedies before filing in federal court, reasonable jurists could not find that a dismissal of the instant action was debatable or wrong. It is thus RECOMMENDED that Petitioner be DENIED a COA. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam) (approving denial of COA before movant filed a notice of appeal).
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the Honorable Marc T. Treadwell, Chief United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
SO RECOMMENDED.