United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge E. Clayton Scofield's Final Report and Recommendation  ("R&R"). The R&R considers Plaintiff Marak Antonio Johnson, Sr.'s ("Plaintiff") Complaint for Mandamus Relief  ("Complaint"). The Magistrate Judge construed Plaintiff's Complaint as a petition for a writ of habeas corpus, and recommended that this action be dismissed without prejudice for Plaintiff's failure to exhaust his state-court remedies. Also before the Court is Plaintiff's Motion to Appoint Counsel .
On January 20, 2015, Plaintiff, an inmate at Georgia State Prison in Reidsville, Georgia, filed his Complaint, requesting that the Court "issue an injunction against Superior Court Judge Linda Warren Hunter... to cease and desist and immediately release [Plaintiff] from the custody of the Georgia Department of Correction... from the unconstitutional and illegally imposed sentence...." (Complaint at 1).
On January 29, 2015, the Magistrate Judge, noting that Plaintiff is seeking to be released from state confinement, construed Plaintiff's Complaint as a petition for a writ of habeas corpus. (R&R at 2). The Magistrate Judge noted further that Plaintiff has not exhausted his state court remedies. (Id. at 3). Plaintiff alleges that he has sought relief only in the Superior Court, and not on direct appeal, and has not filed a state habeas petition. (Id. at 3). The Magistrate Judge, noting that exhaustion of state court remedies is required before a petitioner can seek a writ of habeas corpus in federal court, recommended that the Court dismiss this action without prejudice, and recommended that a Certificate of Appealability ("COA") not be issued. (Id.).
On February 9, 2015, Plaintiff filed his Objections  to the R&R, asserting that the Magistrate Judge should not have construed his Complaint as a petition for a writ of habeas corpus, arguing that he is entitled to a writ of mandamus ordering Superior Court Judge Linda Warren Hunter to order Plaintiff to be released from prison. (Objections at 9-10).
On April 8, 2015, Plaintiff filed his Motion to Appoint Counsel, requesting that the Court appoint a lawyer to assist him on direct appeal of his "void judgment." (Motion at 1). On April 8, 2015, Plaintiff filed his "Amended Breif [sic] New Information, "  ("Amended Brief"), docketed as an Amended Petition for Writ of Habeas Corpus, which contained additional argument regarding why Plaintiff is allegedly entitled to a writ of mandamus.
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); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert denied, 459 U.S. 1112 (1983). 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 a party has not asserted objections, the district judge must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
Plaintiff objected to the Magistrate Judge construing Plaintiff's Complaint as a petition for a writ of habeas corpus. The Court reviews this legal conclusion de novo. See Slay, 714 F.2d at 1095.
When a plaintiff seeks to be released from confinement, Plaintiff is required to bring a federal habeas action. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus"). The Court notes that, to the extent Plaintiff seeks a writ of mandamus to compel "Superior Court Judge Linda Warren Hunter... to cease and desist and immediately release [Plaintiff] from the custody of the Georgia Department of Correction... from the unconstitutional and illegally imposed sentence, " this Court lacks the authority to issue a writ of mandamus against this state judicial officer. See Noe v. Metropolitan Atlanta Rapid Transit Authority, 485 F.Supp. 501, 504 (N.D.Ga. 1980), aff'd, 644 F.2d 434 (11th Cir.), 650 F.2d 284, cert. denied 454 U.S. 1126 (1981); c.f. Russell v. Knight, 488 F.2d 96, 97 (5th Cir. 1973) (holding that federal mandamus is not available in actions against state officials). The Court concludes that the Magistrate Judge correctly construed Plaintiff's Complaint as a petition for a writ of habeas corpus.
Plaintiff did not object to the Magistrate Judge's finding that Plaintiff failed to exhaust his state court remedies. The Court thus reviews these findings ...