United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Petitioner brings the above-captioned case pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition for lack of exhaustion. (Doc. no. 6.) For the reasons set forth below, the Court REPORTS and RECOMMENDS that Respondent's motion be GRANTED and that this case be dismissed without prejudice and CLOSED.
A jury sitting in the Superior Court of Richmond County, Georgia, found Petitioner guilty in March 2010 of malice murder, felony murder based on aggravated assault, and possession of a firearm during the commission of a crime. Hoehn v. State, 744 S.E.2d 46, 47 & n.1 (Ga. 2013). The trial court sentenced Petitioner to life in prison for the malice murder conviction and five consecutive years for the firearm conviction; the felony murder conviction was vacated by operation of law. Id . The trial court denied Petitioner's motion for a new trial on May 2, 2012. Id.
Through new counsel, Petitioner filed a direct appeal raising two grounds of error: (1) he was denied a fundamentally fair trial because the trial court failed to sustain his objection to the questioning of a witness by a juror; and (2) he was improperly prejudiced because the trial court failed to grant his general demurrer to the felony murder count because the count failed to allege the elements of the underlying felony of aggravated assault. Id .; Resp. Ex. 1, p. 3. The Georgia Supreme Court affirmed his convictions on direct appeal on June 3, 2013. The Supreme Court found the trial court erred for not sustaining the objection regarding a juror questioning a witness but that the error was harmless, and as to the second enumeration of error, it lacked merit but was also moot because the felony murder conviction was vacated by operation of law upon his conviction for malice murder. Hoehn, 744 S.E.2d at 48-49. Petitioner did not seek a writ of certiorari from the United States Supreme Court or file a state petition for a writ of habeas corpus. (Doc. no. 1, p. 2.)
Petitioner raises multiple grounds for relief in his federal habeas corpus petition. Petitioner argues the indictment in his case was defective in multiple ways, both trial and appellate counsel were ineffective in multiple ways, and the trial court erred in denying Petitioner's motion for a directed verdict and motion for a new trial. (Id. at 3-17.) In his brief in support of his petition, Petitioner also argues his due process and equal protection rights were violated because he was not present for the hearing on his motion for a new trial. (Doc. no. 3, p. 6.) On the one hand, Petitioner asserts he has exhausted his claims by filing a direct appeal, but he also asks that the federal court review all of his claims under the "plain error" standard even if all of his claims are not exhausted because he has been wrongly convicted. (Doc. no. 1, pp. 2-3, 18; doc. no. 3, pp. 14-15; doc. no. 8, pp. 1-2.)
Respondent moves to dismiss the petition because Petitioner filed his federal habeas corpus petition without first utilizing available state remedies to exhaust all of his claims, namely he did not file a state habeas corpus petition. (See generally doc. no. 6.)
A. The Exhaustion Requirement.
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, and in accordance with the traditional exhaustion requirement, an application for a writ of habeas corpus shall not be granted unless it appears that the petitioner has exhausted the remedies available to him by any state court procedure. See 28 U.S.C. §§ 2254(b)(1)(A) & (c). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State... if he has the right under the law of the State to raise, by any available procedure, the question presented." Id . § 2254(c) (emphasis added). The United States Supreme Court has held that a state inmate is deemed to have exhausted his state judicial remedies when he has given the state courts, or they have otherwise had, a fair opportunity to address the state inmate's federal claims. Castille v. Peoples, 489 U.S. 346, 351 (1989). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
Moreover, giving the state courts an opportunity to act on a petitioner's claims includes allowing the state courts to complete the appellate review process. As the Supreme Court explained:
Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, we conclude that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.
Id. at 845. This "one full opportunity" includes pursuing discretionary review with the highest available appellate court where the highest court of the state has not opted out of this requirement. Id . In Georgia, a petitioner's "failure to apply for a certificate of probable cause to appeal the denial of his state habeas petition to the Georgia Supreme Court means that [the petitioner] has failed to exhaust all of his available state remedies." Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004).
"Generally, when a petitioner has failed to exhaust state remedies, the district court should dismiss the petition without prejudice to allow exhaustion." Reedman v. Thomas, 305 F.Appx. 544, 546 (11th Cir. 2008) (citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)). However, the exhaustion doctrine does not require a petitioner to seek collateral review in state courts of issues raised on direct appeal. Walker v. Zant, 693 F.2d 1087, 1088 (11th Cir. 1982). When a petitioner files a "mixed" petition, including both exhausted and unexhausted claims, a court has the option of issuing a stay and holding the petition in ...