Opinion
No. 5:19-cv-00274-TES-MSH
03-05-2020
COOSA NATION, ex rel., LAMAR PERRYMAN, Petitioner, v. ZSI PROBATION SERVICE, INC., et al., Respondents.
ORDER AND REPORT AND RECOMMENDATION
Pending before the Court are Respondents' motions to dismiss (ECF Nos. 19, 22) Petitioner's original and amended applications for habeas corpus relief (ECF Nos. 1, 14). For the reasons described below, it is recommended that Petitioner's application for habeas relief under 28 U.S.C. § 2254 be dismissed.
BACKGROUND
On May 22, 2019, a Butts County, Georgia jury found Lamar Perryman guilty of one count each of misdemeanor obstruction of an officer and disorderly conduct. Trial Rec. 19, ECF No. 20-1. On May 28, 2019, the Superior Court of Butts County sentenced Perryman to twelve months on each count—to be served concurrently—with the first sixty days in confinement and the balance probated. Id. at 28-32. Perryman's trial counsel filed a motion for new trial on June 10, 2019. Id. at 34-36. That motion remains pending. Pet'r's Resp. to Mot. to Dismiss 6, ECF No. 24. On July 22, 2019, Perryman, appearing pro se, filed a notice of appeal to the Georgia Supreme Court. Trial Rec. 37-39. He filed another pro se notice of appeal to the Georgia Supreme Court on September 13, 2019. Id. at 171-73. Finding that it lacked appellate jurisdiction, the Georgia Supreme Court transferred the appeal to the Georgia Court of Appeals. Perryman v. State, S20A0327 (Ga. Nov. 4, 2019); Trial Rec. 177. On January 10, 2020, the Georgia Court of Appeals dismissed Perryman's appeal "as abandoned" due to his failure to timely file a brief or enumeration of errors. Perryman v. State, A20A0876 (Ga. Ct. App. Jan. 10, 2020); Notice of Filing Ex. 2, ECF No. 20-2.
Petitioner filed an application for federal habeas relief (ECF No. 1) pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Georgia on June 5, 2019. The case was transferred to this Court on July 9, 2019. Order 2, ECF No. 4. Petitioner filed an amended application (ECF No. 14) on December 18, 2019. On January 13, 2020, the State of Georgia answered the petition (ECF No. 18). It also moved to dismiss for Petitioner's failure to exhaust his available state remedies. Resp't State of Georgia's Br. in Supp. of Mot. to Dismiss 2-5, ECF No. 19-1. Respondent ZSI Probation Services, Inc. ("ZSI") also filed a motion to dismiss, raising the same grounds. Resp't ZSI Mot. to Dismiss 1-3, ECF No. 22. Petitioner responded (ECF No. 24) on February 21, 2020. These motions are ripe for review.
Perryman was detained at the time he filed his petition. Pet. 22, ECF No. 1. 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) (citation and 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.
DISCUSSION
I. Proper Respondent
It is not clear who the proper Respondent is in this case. A petition under § 2254 "must name as respondent the state officer who has custody." Rules Governing Section 2254 Cases, Rule 2(a). Perryman is on misdemeanor probation. Trial Rec. 28. Generally, the proper respondent for petitioners on probation is the "particular probation . . . officer responsible for supervising the [Petitioner], and the official in charge of . . . the probation agency, or the state correctional agency, as appropriate." Rules Governing Section 2254 Cases, Rule 2, advisory committee's note to 1976 adoption. ZSI, however, is a private probation company charged with supervising Perryman's probation. Pet'r's Resp. to Ct. Order 2, ECF No. 11; ZSI Answer 3 n.1, ECF No. 17. Thus, it is not a state officer or the proper respondent. See Brown v. Adams, No. 5:17-cv-223-MTT-CHW, 2018 WL 4441530, at *1 (M.D. Ga. June 20, 2018), recommendation adopted by 2018 WL 4409393, at *1 (M.D. Ga. Sept. 17, 2018) (noting that warden of private correctional facility is not a state officer for purposes of § 2254 petition).
In addition, the Court previously ordered Terry Barnard to be named as a respondent because he is the current Chairman of the Georgia State Board of Pardons and Parole. Order 2, Nov. 14, 2019, ECF No. 13. That designation, however, was erroneous because he is not in charge of misdemeanor probation in Georgia. Instead, misdemeanor probation is the responsibility of counties, which have the authority to contract with private probation companies like ZSI. O.C.G.A. § 42-8-101(a)(1). Therefore, the State of Georgia has asked to be substituted as a respondent in place of Chairman Barnard in order to assert its defenses to the petition. Resp't State of Georgia's Mot. to Dismiss 1 n.1, ECF No. 19.
Because Coosa Nation does not have standing to bring this petition and Perryman failed to exhaust his state court remedies, identifying the specific state officer with custody of Petitioner is not critical, and thus, the State of Georgia's motion is GRANTED. Accordingly, the CLERK is DIRECTED to correct the caption to substitute the State of Georgia as a Respondent in place of Chairman Barnard. Further, because ZSI is not a state officer and "there is generally only one proper respondent to a given prisoner's habeas petition," Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004), the Court recommends that ZSI be dismissed and its motion to dismiss (ECF No. 22) denied as moot.
II. Standing of Coosa Nation
Although not raised by Respondents, the Court is obligated to determine whether it has jurisdiction to consider Petitioner's application. See Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam) ("A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises."). Here, Perryman purports to bring this petition not in his individual capacity, but as "Principal Chief, Coosa Nation of North America." Am. Pet. 1, ECF No. 14; Pet'r's Br. in Supp. of Am. Pet. 1-2, ECF No. 16.
A district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Lamar Perryman is the person in custody pursuant to the judgment of the Superior Court of Butts County, Georgia—not Coosa Nation. Trial Rec. 28. Someone acting as "next friend" may file a habeas petition on behalf of a person unable to seek relief himself. Francis v. Warden, FCC Coleman-USP, 246 F. App'x 621, 622 (11th Cir. 2007) (per curiam) (citing Ford v. Haley, 195 F.3d 603, 604 (11th Cir. 1999)); see also 28 U.S.C. § 2242 ("Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf."). One prerequisite to such standing, however, is that the next friend "provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action." Id. (quoting Whitmore v. Arkansas, 494 U.S. 149, 163 (1990)). Coosa Nation has provided no such explanation. "[W]ithout 'next friend' status, [Coosa Nation] lack[s] standing under Article III to file the [habeas] petition, thus stripping the district court of jurisdiction over the petition." Id. at 623. The Court, therefore, recommends dismissing this petition for lack of jurisdiction.
The Court further notes that while individual parties in federal court may appear pro se, that right "is limited to parties conducting their own cases [] and does not extend to non-attorney parties representing the interest of others." FuQua v. Massey, 615 F. App'x 611, 612 (11th Cir. 2015) (per curiam) (internal quotation marks omitted). Thus, Coosa Nation is not entitled to appear pro se on behalf of Lamar Perryman.
III. Perryman's Failure to Exhaust State Remedies
Alternatively, even if the Court construes Perryman's application as brought in his individual capacity, it should be dismissed for failure to exhaust available state remedies. "Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a [person in custody] made insufficient effort to pursue in state proceedings." Williams v. Taylor, 529 U.S. 420, 437 (2000). Accordingly, 28 U.S.C. § 2254(b)(1)(A) prohibits a court from granting an application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c) (emphasis added).
"Exhaustion requires that 'state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.'" Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (per curiam) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). "That is, to properly exhaust a claim, the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review." Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010) (per curiam) (internal quotation marks omitted). Further, a petitioner "must comply with all independent and adequate state procedures." Id. (internal quotation marks omitted).
It is undisputed that the grounds asserted by Petitioner in his federal habeas petition have not been ruled upon by any state appellate or habeas court. Petitioner filed a pro se notice of appeal, but the appeal was dismissed due to Petitioner's failure to comply with appellate procedures. Perryman v. State, A20A0876 (Ga. Ct. App. Jan. 10, 2020); Notice of Filing Ex. 2, ECF No. 20-2. His motion for new trial remains pending in the trial court. Trial Rec. 34-36; Pet'r's Resp. to Mot. to Dismiss 6. He admits he has not filed a state habeas petition. Am. Pet. 3, 6. Consequently, Petitioner has not exhausted his available state remedies.
There are "rare instances" in which a federal court may waive the exhaustion requirement. Hughes v. Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986) (per curiam). "State remedies will be found ineffective and a federal habeas petitioner will be excused from exhausting them in the case of unreasonable, unexplained state delays in acting on the petitioner's motion for state relief." Cook v. Fla. Parole & Prob. Comm'n., 749 F.2d 678, 680 (11th Cir. 1985) (per curiam); see 28 U.S.C. § 2254(b)(1)(B) (barring federal habeas relief unless "there is an absence of available State corrective process" or "circumstances exits that render such process ineffective to protect the rights of the applicant").
Petitioner argues that the trial court has not ruled on his motion for new trial in over nine months. Pet'r's Resp. to Mot. to Dismiss 6. However, there is no evidence Petitioner has prompted the state court for a ruling on the motion, and there are still state remedies available to address any perceived dilatoriness by the state trial court. He could seek a writ of mandamus against the trial court, ordering it to decide his pending motion for new trial. See O.C.G.A. § 9-6-20 (providing that "the writ of mandamus may issue to compel a due performance if there is no other specific legal remedy for the legal rights"); Jackson v. Walker, 206 F. App'x 967, 969 (11th Cir. 2006) (per curiam) (finding petitioner failed to exhaust state remedies where he could file writ of mandamus). He could also pursue a state habeas action to assert a claim related to the length of delay in hearing his motion for new trial. See Little v. Hopper, 236 Ga. 321 (1976) (case involving writ of habeas corpus when a timely motion for new trial had been filed but had been pending for a lengthy amount of time).
Because Petitioner has not exhausted his available state remedies, and such failure is not excused, it is recommended—in the alternative to dismissal for lack of jurisdiction—that Respondent State of Georgia's motion to dismiss be granted and Petitioner's application for a writ of habeas corpus be dismissed to allow Petitioner to exhaust his state remedies.
In fact, Coosa Nation has stated it "will file a notice of appeal or a petition for a writ of habeas corpus to the Georgia Supreme Court to invoke that court's original appellate jurisdiction or [its] original jurisdiction under state law for the matters in this case." Pet'r's Resp. to Mot. to Dismiss 6, ECF No. 24.
IV. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2254 Cases in the United States District 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, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the reasons stated above, it is recommended that Petitioner's application for habeas relief be dismissed for lack of jurisdiction. Alternatively, it is recommended that Respondent State of Georgia's motion to dismiss (ECF No. 19) be granted, Petitioner's original and amended petitions (ECF Nos. 1, 14) be dismissed, and a certificate of appealability not issued. 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. 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, this 5th day of March, 2020.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE