Appeal from the United States District Court for the Middle District of Georgia. D.C. Docket No. 4:13-cv-00180-CDL-MSH.
For Roderick Howard, Petitioner - Appellant: Merritt Ellen McAlister, King & Spalding, LLP, Atlanta, GA.
Roderick Howard, Petitioner - Appellant, Pro se, Helena, GA.
For Warden, Respondent - Appellee: Katherine Lee Iannuzzi, Samuel Scott Olens, Georgia Department of Law, Atlanta, GA.
Before MARTIN and ANDERSON, Circuit Judges, and MORENO,[*] District Judge.
MARTIN, Circuit Judge:
Roderick Howard appeals the District Court's dismissal of his pre-trial habeas corpus petition challenging the constitutionality of a dead-docketed indictment that has been pending for approximately nineteen years. The District Court held that it did not have jurisdiction to consider Mr. Howard's petition because he was not " in custody" in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2241(c)(3). After careful consideration, we agree that a dead-docketed indictment, without more, does not constitute custody and affirm.
In 1995, a Muscogee County, Georgia grand jury indicted Mr. Howard for burglary. He was never tried or convicted for that offense. Instead, in 1996, the trial court moved his indictment to the Georgia " dead docket," where it remains today. This process of dead-docketing an indictment is one by which " prosecution is postponed indefinitely but may be reinstated
any time at the pleasure of the court. Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused's favor." State v. Creel, 216 Ga.App. 394, 454 S.E.2d 804, 805 (Ga. Ct. App. 1995) (citations and quotation marks omitted). Only the trial court has the ability to reinstate a dead-docketed indictment. See O.C.G.A. § 15-6-61(a)(4)(B).
In 1997, Mr. Howard was tried, convicted, and sentenced to a 20-year term of imprisonment for a burglary not related to the 1995 indictment. See Howard v. State, 227 Ga.App. 5, 488 S.E.2d 489, 490 (Ga. Ct. App. 1997). At that trial, the state introduced evidence of the 1995 burglary as similar-transaction evidence. Id. There is no evidence that suggests, and Mr. Howard does not ...