United States District Court, S.D. Georgia, Augusta Division
October 21, 2014
BILLY N. HAMMOCK, Petitioner,
SHAY HATCHER, Respondent.
J. RANDAL HALL, District Judge.
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which no objections have been filed. The Magistrate Judge recommended dismissal of the amended petition for lack of exhaustion of state remedies because Petitioner's state habeas petition was still pending. (See doc. no. 9.)
In lieu of objections, Petitioner filed a motion to show cause. (Doc. no. 11.) The Court will construe Petitioner's motion as an attempt to show that he has exhausted his available state remedies because he has attached a copy of the order denying his state habeas petition, issued on September 5, 2014. (Id. at 6-12.) However, as the Magistrate Judge explained, to fully exhaust his available state remedies Petitioner must apply for a certificate of probable cause to appeal the denial of his state habeas petition to the Georgia Supreme Court. (Doc. no. 9, p. 5 (citing Pope v. Rich , 358 F.3d 852, 854 (11th Cir. 2004).) Petitioner has not presented any evidence that he has applied for a certificate of probable cause to appeal or that the application has been ruled on and, therefore, he has still failed to exhaust all of his available state remedies. Thus, Petitioner's motion to show cause is DENIED. (Doc.no. 11.)
Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion, DENIES AS MOOT Petitioner's motion to proceed in forma pauperis (doc. no. 2), and DISMISSES the instant amended petition brought pursuant to 28 U.S.C. § 2254.
A prisoner seeking relief under § 2254 must obtain a certificate of appealability ("COA") before appealing the denial of his application for a writ of habeas corpus. This Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2254 Proceedings. This Court should grant a COA only if the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the standards enunciated in Slack v. McDaniel , 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, the Court DENIES a COA inthis case. Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith and Petitioner is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action.