Opinion
CIVIL ACTION NO. 1:17-CV-134-TWT-CMS
01-19-2017
ISNEL RIGAUD, (a/k/a CHISNEL RIGAUD), Petitioner, v. STATE OF GEORGIA, Respondent.
FINAL REPORT AND RECOMMENDATION
Former Georgia inmate Isnel Rigaud mailed to the Clerk of this Court a copy of a pleading entitled "Emergency Motion to Expedite the Vacating Process and to Amend the Defendant Coram Nobis Motion to Vacate His Conviction." See [1]. Rigaud's pleading states that it was prepared for filing "In the Superior Court for the Cobb County Judicial District," bears Rigaud's state criminal case number, and includes a certificate stating that it was served on the "Georgia District Attorney Office for Cobb County." See id.
It thus appears that Rigaud did not intend to initiate a new case in this Court, and the undersigned RECOMMENDS that this case be ADMINISTRATIVELY CLOSED.
The undersigned DECLINES to recharacterize Rigaud's filing as a federal habeas petition pursuant to 28 U.S.C. § 2254. Cf. Castro v. United States, 540 U.S. 375, 383 (2003) (limiting federal courts' power to recharacterize a post-conviction filing as a § 2255 motion without providing warnings and an opportunity to modify or withdraw the filing); Retic v. United States, 215 F. App'x 962, 965 (11th Cir. 2007) (applying Castro to the recharacterization of a filing as a § 2254 petition). Instead, if Rigaud wishes to file a federal habeas petition, he should use this Court's § 2254 petition form and either pay the $5 filing fee or request permission to proceed in forma pauperis ("IFP").
The Clerk is DIRECTED to send Rigaud copies of this Court's § 2254 petition form and IFP application form for non-prisoners.
Rigaud is ADVISED that a one-year limitation period applies to federal habeas petitions, see 28 U.S.C. § 2244(d), and that he will need to explain why his petition is not untimely, if he chooses to initiate a federal habeas case.
Rigaud is ADVISED that it is generally a prerequisite to the grant of federal habeas relief that a petitioner have first fully exhausted all available state remedies. See 28 U.S.C. § 2254(b)(1).
Finally, Rigaud is ADVISED that Padilla v. Kentucky, 559 U.S. 356 (2010), which was decided before he entered his guilty plea, is not, in any event, retroactively applicable in a federal habeas case alleging ineffective assistance of counsel. See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013).
The Clerk is DIRECTED to terminate the referral of this case to the undersigned.
SO RECOMMENDED AND DIRECTED, this 19th day of January, 2017.
/s/_________
CATHERINE M. SALINAS
UNITED STATES MAGISTRATE JUDGE