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Andriatti v. Warren

United States District Court, N.D. Georgia, Atlanta Division

July 25, 2014



WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Petitioner Tess Hollis Andriatti's ("Petitioner") pro se objections [6] to Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation [3] ("R&R"). Also before the Court are Petitioner's Motion to Amend Defendants [5], Motion for the Court to Order and Compel Release [8], Motion for Default Judgment against Neil Warren, Cobb County Sheriff ("Warren") [9], and Motion for Default Judgment against the State of Georgia [10].


Petitioner, proceeding pro se , is an inmate at the Cobb County Adult Detention Center in Marietta, Georgia. On December 4, 2013, Petitioner filed her Petition pursuant to 28 U.S.C. § 2241 (the "Petition").[1] In the Petition, Petitioner contends she is "imprisoned against her will" for "illegal" charges. (Pet. at 1.) According to Petitioner, in October 2009, she was "illegally charged but never indicted" with five felony counts of first degree forgery, four counts of making false statements, and one count of "Georgia Rico." (Id.) Petitioner asserts she was denied bond for "a victimless crime" and that "the entire manner constitutes a conspiracy against [her] rights' and [a] denial of due process.'" (Id.) Petitioner also asserts that the State of Georgia lacks "in personam" [sic] "jurisdiction" to prosecute her because she is a woman. (Id. at 2.) Petitioner seeks release and expungement of her criminal record.

On February 3, 2014, the Magistrate Judge issued her R&R, reviewing the Petition under Rule 4 of the Rules Governing Section 2254 Cases ("Rule 4"), recommending that the Petition be dismissed without prejudice because it "plainly appears... that the petitioner is not entitled to relief in the district court."[2] The Magistrate Judge also recommended that the Court not grant Petitioner a certificate of appealability ("COA").

On February 3, 2013, Petitioner filed an "Amendments [sic] to Add Defendants, " which the Court construes as her Motion to Add Defendants [5]. Petitioner seeks to add: Judge Dorothy Robinson; Sheriff Neal Warren; Cobb County, Georgia; Victor Reynols, "D.A.;" and Rebecca Keaton, "Superior Court Clerk."

On February 14, 2014, Petitioner filed her objections [6] to the R&R. On April 23, 2014, Petitioner filed a Motion for the Court to Order and Compel Release [8]. On May 29, 2014, Plaintiff filed Motions for Default Judgment [9, 10] against Warren and the State of Georgia[3] for not answering the Petition.


A. Legal Standard

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. IV 2010); Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).

B. Analysis

1. Objections to the R&R

In her objections, Petitioner asserted that she does "not have a pending criminal case" (Obj. at 1) and therefore the Magistrate Judge's application of Younger v. Harris , 401 U.S. 37 (1971), "cannot be used [because] [t]his case is not an open case with pending state criminal prosecution[s] and [Petitioner] is not being held on criminal charges." (Id. at 2.) Petitioner's arguments are unfounded. In her Petition, Petitioner specifically stated that she is presently "imprisoned against her will, " and was "charged... for 5 counts of Felony [sic]." (Pet. at 1.) The Magistrate Judge reasoned that if Petitioner is currently being held on criminal charges, as she asserts in her Petition, then the Court is prohibited by the Younger[4] abstention doctrine from interfering with Petitioner's untried state criminal proceedings

Younger allows a federal court to intervene in a pending state criminal proceeding only under extraordinary circumstances. Those circumstances are: "(1) [that] there is evidence of state proceedings motivated by bad faith, (2) [that] irreparable injury would occur, or (3) [that] there is no adequate alternative state forum where the constitutional issues can be raised." See Hughes v. Attorney General of Fla. , 377 F.3d 1258, 1262 n.4 (11th Cir. 2004) (citing Younger , 401 U.S. at 53-54). The Magistrate Judge found that no exception to the Younger abstention doctrine applies in this action because Petitioner did not allege an irreparable injury or a flagrant violation of her rights. The Magistrate Judge also found that Petitioner's allegations do not demonstrate that her prosecution is motivated by bad faith.

In her objections, Petitioner made the conclusory assertion that she "has alleged irreparable injury and flagrant allegations of rights do [sic] demonstrate that her prosecution is motivated by bad faith" (Obj. at 2). Upon de novo review, the Court concludes that Petitioner does not provide factual support for these conclusions, and Plaintiff's objections to the findings and recommendations in the R&R are required to be overruled. See Papasan v. Allain , 478 U.S. 265, 286 (1986) (approving rejection of conclusory assertions that lack factual support); see also Cain v. Polen, 454 F.Appx. 716, 716 (11th Cir. 2011) (explaining that a prisoner's allegations must offer factual support, and conclusory statements are insufficient).

Petitioner did not object to the Magistrate Judge's finding that she has not sought state habeas corpus relief, and that she still has state court remedies available to her.[5] Petitioner must exhaust her state court remedies before the Court can grant federal habeas relief that she is seeking under Section 2254.[6] See Ali v. State of Fla. , 777 F.2d 1489, 1490 (11th Cir. 1985) (affirming dismissal of federal habeas petition "[b]ecause it is clear that the state is asserting exhaustion as a defense, and because it is clear that [the petitioner] did not exhaust available state remedies"). The Court finds no plain error in the Magistrate Judge's finding that Petitioner did not exhaust her state court remedies.

2. Certificate of Appealability

Petitioner next objects to the Magistrate Judge's recommendation that a COA be denied because "this Court has no right or ground to deny a [COA]" and "Petitioner has made a substantial showing of the denial of constitutional rights." (Obj. at 3.) A state prisoner proceeding under 28 U.S.C. § 2241 must obtain a COA to appeal from a district court's denial of the prisoner's habeas petition. See 28 U.S.C. § 2253(c)(1)(A); Sawyer v. Holder , 326 F.3d 1363, 1364 n.3 (11th Cir. 2003). A district court "must issue or deny a Certificate of Appealability when it enters a final order adverse to the appellant." See R. Governing § 2254 Cases 11. The Magistrate Judge correctly found that a COA should not be issued because Petitioner did not make a substantial showing of the denial of a constitutional right and reasonable jurists could not find this conclusion "debatable or wrong." See Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). The COA is denied and Petitioner's objection is required to be overruled.[7]


Having reviewed the Petition and Petitioner's objections, the Court agrees with the findings and recommendations of the Magistrate Judge in the R&R and finds further that Petitioner's objections are required to be overruled, and that this case is required to be dismissed without prejudice.[8], [9]

Accordingly, and for the foregoing reasons stated in this Order,

IT IS HEREBY ORDERED that Petitioner's pro se objections [6] are OVERRRULED.

IT IS FURTHER ORDERED that Magistrate Judge Gerrilyn G. Brill's Final Report and Recommendation [3] is ADOPTED.

IT IS FURTHER ORDERED that Petitioner's Motion to Amend Defendants [5], Motion for the Court to Order and Compel Release [8], and Motions for Default Judgment [9, 10] are DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.


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