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Kelly v. Barrow

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

August 7, 2014

DONALD BARROW, Respondent.


WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Petitioner's objections [8] to Magistrate Judge Janet F. King's Final Report and Recommendation [6] ("R&R"), recommending that the petition for writ of habeas corpus be dismissed for lack of jurisdiction. The Magistrate Judge also recommended that Petitioner should not be granted a certificate of appealability ("COA").


Petitioner Reginald Kelly ("Petitioner") has a lengthy criminal history.[1] He has been incarcerated in the Georgia Department of Corrections facilities at least four times.[2] Petitioner is currently confined at the Washington State Prison in Davisboro, Georgia. In Kelly v. Brown, No. 1:13-cv-0988 (N.D.Ga. Oct. 11, 2013) (hereinafter "Kelly"), Petitioner, then an inmate at the Newton County Jail, proceeding pro se , filed a petition for a writ of habeas corpus. Petitioner alleged that he had been confined, without trial, for over four years while awaiting a trial on drug and weapons charges. Petitioner sought to challenge his confinement on the ground that he had been denied a speedy trial. On May 20, 2013, Petitioner pleaded guilty to various drug and weapons charges, and he was sentenced to forty years in prison. Petitioner subsequently filed an amended petition in Kelly to challenge his conviction and sentence, based on an alleged violation of his speedy trial rights.[3] The Court denied the amended petition in Kelly on its merits.[4]

On December 2, 2013, Petitioner filed his petition in this action ("the Petition") in which he challenges the same 2013 Newton County convictions, based on an alleged violation of his speedy trial rights.[5] Petitioner also submitted with the Petition an "Amended Petitioner's Brief, " ("Amended Petition") (collectively, "Petitions") in which Petitioner asks the Court to "view his speedy trial petition, and if it finds that his speedy trial rights have been violated... that he is released from custody and acquitted of all charges listed in the state's indictment." (See Am Pet's. Br. at 25.)

In the Amended Petition, Petitioner also raises a claim challenging the validity of his sentence and asserts a claim for ineffective assistance of counsel. (See id. at 13, 17.) Petitioner further claims that his plea was involuntary and that he is "entitled to a hearing to determine whether or not his guilty plea was voluntary even though he had declared in open court that his plea was given voluntarily and knowingly." (See id. at 14.)

On December 17, 2013, Magistrate Judge King issued her R&R recommending that the Court dismiss the Petitions for lack of jurisdiction. Rule 4 of the Rules Governing Section 2254 Cases requires district courts to "promptly examine" a Section 2254 petition and to dismiss it "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." The Magistrate Judge examined the Petition and Amended Petition and concluded that they were successive habeas petitions, which are only entitled to district court review if the petitioner first receives authorization from the Court of Appeals to file a successive petition. The Magistrate Judge recommended dismissing the Petition and the Amended Petition because Petitioner failed to apply for, and receive, authorization from the Eleventh Circuit Court of Appeals to file his successive Section 2254 Petitions. The Magistrate Judge also recommended that the Court not grant a COA to Petitioner.

On December 30, 2013, Petitioner filed his objections [8] to the R&R. Petitioner appears to contest the Magistrate Judge's determination that the Petitions are a successive attack on Petitioner's Newton County convictions.


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). Even though Petitioner's "objections" to the R&R are doubtfully sufficiently specific, the Court conducts its de novo review of the findings and recommendations in the R&R. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).[6] With respect to those findings and recommendations to which objections have not been asserted, the Court conducts a plain error review of the record. See Id.

B. Analysis

1. Objections to the R&R

Petitioner objects to the finding in the R&R that Petitioner has not paid the $5.00 filing fee. The Court's review of the CM/ECF docket in this case shows that Petitioner did pay the $5.00 filing fee (Receipt number GAM500012833). Petitioner's objection to the Magistrate Judge's finding that he failed to pay the filing fee is sustained. The Court concludes, however, that the filing fee discrepancy does not affect the Magistrate Judge's findings regarding subject matter jurisdiction and her recommendation that this action be dismissed. See Wells v. Crews, No. 3:12-cv-249, 2013 WL 1395887 at *1-2 (N.D. Fla. Mar. 5, 2013) (where petitioner paid the $5.00 filing fee to file a petition for writ of habeas corpus under 28 U.S.C. § 2254 because he did not "[obtain] the requisite permission from the Eleventh Circuit Court of Appeals prior to filing the instant § 2254 petition, " "[t]his failing operates as a jurisdictional bar that precludes this district court's consideration of the merits of the instant petition."); ...

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