Opinion
Case No. 5:18-cv-00384-TES-CHW
07-30-2019
STEVEN TROY THOMAS, Petitioner, v. STATE OF GEORGIA, et al., Respondents.
Proceedings Under 28 U.S.C. § 2254
Before the U.S. Magistrate Judge REPORT AND RECOMMENDATION
Before the Court is a motion to dismiss Steven Troy Thomas's petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. (Doc. 14). Because Petitioner has not yet exhausted his state court remedies, it is RECOMMENDED that the motion to dismiss be GRANTED, and that this action be DISMISSED without prejudice.
BACKGROUND
On February 8, 2018, Petitioner was found guilty on charges of driving without a license, reckless driving, fleeing or attempting to elude a police officer, and obstruction of an officer. (Doc. 15-1, p. 1; Doc. 15-2, p. 1). The record indicates that Petitioner was stopped by a Butts County Sheriff's Officer for speeding on I-75. When the officer determined that Petitioner was driving without a license, Petitioner fled in his vehicle, resulting in a high-speed chase culminating in a "PIT maneuver." See (Doc. 15-4, p. 3).
Following his conviction, on February 21, 2018, Petitioner filed a motion for new trial. (Doc. 15-3, p. 1). That motion was denied on July 3, 2018. (Doc. 15-4, pp. 1-4). Petitioner has not litigated a direct appeal, and he has not commenced state habeas proceedings. See (Doc. 4, pp. 2-3). See also (Doc. 19-1, p. 1).
PETITIONER'S MOTION TO EXPAND THE RECORD
Petitioner has filed a "motion to compel Respondents to file a full and complete record herein." (Doc. 20). This motion is DENIED for two reasons. First, Petitioner fails to identify with any particularity what records he seeks to obtain. Instead, Petitioner merely asserts that Respondents have "overlooked those portions of said record that are material and relevant to Thomas' Habeas Grounds." (Doc. 20, p. 1). Second, the Court is currently entertaining Respondents' motion to dismiss solely on the basis that Petitioner failed to exhaust his claims through "one complete round" of review before the courts of the State of Georgia. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Insofar as Petitioner seeks records associated with his trial, or with proceedings relating to his motion for new trial, Petitioner has failed to demonstrate why those records are relevant to the exhaustion inquiry. Accordingly, Petitioner is not now entitled to expand the record.
EXHAUSTION
Title 28 U.S.C. § 2254 provides that an "application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). This provision, as interpreted, requires Section 2254 petitioners to exhaust their claims by fairly presenting them to the State courts through one complete round of review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). See also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) ("Boerckel applies to the state collateral review process as well as the direct appeal process").
The record shows that Petitioner has not exhausted his Section 2254 claims. As Respondent notes, Petitioner's failure to adhere to state procedural rules governing the appeals process, including rules setting the time within which an appeal must be commenced, amounts to a failure to exhaust. See, e.g., Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) ("If a petitioner fails to 'properly' present his claim to the state court—by exhausting his claims and complying with the applicable state procedure—prior to bringing his federal habeas claim, then AEDPA typically bars us from reviewing the claim"). Furthermore, while the record suggests that Petitioner may have requested leave from the state courts to file an out-of-time appeal, see (Doc. 19-1, p. 6), there is no indication that Petitioner has been granted such leave, much less that Petitioner has concluded his out-of-time appellate proceedings.
As to state habeas corpus proceedings, Petitioner acknowledges that he has not yet filed a state habeas corpus petition. (Doc. 4, p. 3). See also (Doc. 19-1, p. 1) ("nor did Thomas seek to challenge his convictions in a state collateral proceeding or attack") (internal punctuation omitted). Petitioner argues that his motion for new trial was a form of collateral attack, but again, exhaustion requires Petitioner to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established ... review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As to both the state appellate process and the state habeas process, Petitioner has failed to exhaust one complete round of review.
Finally, nothing in the record — neither Petitioner's frivolous sovereign citizen arguments, (Doc. 21, pp. 2-10), nor his vague allusions to a "prejudicial atmosphere" (Doc. 19, p. 1) — suggests that state process was unavailable to Petitioner, or that it was ineffective to protect his rights. Rather, the record shows that Petitioner commenced this Section 2254 action prematurely, before granting the state courts an opportunity to rule upon his claims of constitutional wrong. As a result, Petitioner's Section 2254 petition should be dismissed, without prejudice, for failure to exhaust his claims as required by 28 U.S.C. § 2254(b)(1)(A).
CONCLUSION
Based on the analysis herein, it is RECOMMENDED that Respondent's motion to dismiss (Doc. 14) be GRANTED, and that this habeas action be DISMISSED without prejudice. It is further ORDERED that Petitioner's motion to expand the record (Doc. 20) is DENIED. Finally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases, it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is also RECOMMENDED that the Court deny a certificate of appealability in its final order.
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 thereof. The District Judge will 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 further 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 RECOMMENDED, this 30th day of July, 2019.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge