Opinion
CV423-044
03-28-2023
KYLE PERRY, Petitioner, v. TIMOTHY WARD, COMMISSIONER, Respondent.
ORDER
CHRISTOPHER L. RAY, UNITED STATES MAGISTRATE JUDGE
Pro se petitioner Kyle Perry filed the instant petition pursuant to 28 U.S.C. § 2254. See generally doc. 1. The Court previously recommended that his Petition be dismissed because he failed to exhaust available state remedies. See generally doc. 3. He has objected to that recommendation, expanding on his previously conclusory contention that the available process was “ineffective,” due to “unreasonable delay.” See generally doc. 4. While the Court does not evaluate the merits of his assertion, it is clear that “states can waive procedural bar defenses in federal habeas proceedings, including exhaustion.” Vazquez v. Sec'y, Fla. Dept. of Corrs., 827 F.3d 964, 966 (11th Cir. 2016). Given that possibility, the Court's prior recommendation is VACATED. Doc. 3.
As the Court's prior Report and Recommendation noted, notwithstanding Perry's failure to exhaust his state remedies, his Petition is defective. See doc. 3 at 1 n. 1. The Rules Governing Section 2254 Cases state that the proper respondent is “the state officer who has custody” of the petitioner. Rule 2(a), Rules Governing Section 2254 Cases. Perry's Petition names Timothy Ward, the former Commissioner of the Georgia Department of Corrections. See doc. 1 at 1. He alleges that, at the time he filed the Petition, he was incarcerated at Coffee County Correctional Facility. Id. His Objection indicates that he remains incarcerated at that facility. See, e.g., doc. 4 at 39. The Eleventh Circuit has directed, albeit in slightly different circumstances, district courts to grant Pro se petitioners an opportunity to amend § 2254 petitions to add their custodian as a respondent. See Retic v. United States, 215 Fed.Appx. 962, 965 (11th Cir. 2007). The Court will do so here.
The current Commissioner of the Georgia Department of Corrections is Tyrone Oliver. See Jonathan Raymond, Governor Announces New Georgia Department of Corrections Commissioner (Dec. 23, 2022, 5:24 AM), 11Alive, https://www.11alive.com/article/news/politics/tyrone-oliver-new-georgiadepartment- of-corrections-commissioner/85-a5907954-a531-49db-b9aa- 54b0d41e68ff (last visited, Mar. 27, 2023).
Perry is DIRECTED to file an Amended Petition naming his present custodian by no later than April 14, 2023. The Clerk is DIRECTED to include a copy of Form AO 241 (Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254) along with this Order for Perry's convenience. Perry is advised that failure to amend within the time permitted will result in a recommendation of dismissal. See Retic, 215 Fed.Appx. at 965.
SO ORDERED,