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 Janet F. King's Final Report and Recommendation  ("R&R"). The R&R considers Petitioner Reginald Kelly's ("Petitioner") Petition for Writ of Habeas Corpus  ("Petition") and Respondent Brian Owens's ("Respondent") Motion to Dismiss . The Magistrate Judge recommended that Respondent's Motion to Dismiss be granted, and that the Petition be dismissed, because Petitioner failed to exhaust his state court remedies.
This is the latest in a series of filings by Petitioner,  an inmate at the Riverbend Correctional Facility in Milledgeville, Georgia, related to his efforts to obtain credit toward his Georgia sentence of imprisonment for the time he spent in jail, either awaiting trial or serving his revoked probation time, since August 28, 2008.
On August 28, 2008, Petitioner was arrested in Newton County, Georgia, for drug, firearm, and theft crimes, including a "Schedule II" drug offense as defined in O.C.G.A. § 16-13-26(1)(D). ("2008 Newton County Charges"). At the time of the arrest, Petitioner was on probation in connection with a prior conviction. See Kelly v. Brown, No. 1:12-cv-1234, Doc. 18 (N.D.Ga. Nov. 26, 2014).
On August 29, 2008, Petitioner appeared before a Newton County magistrate judge who denied Petitioner bond on the ground that, because of the charged crimes, Georgia law authorized only a superior court judge to grant bond. Id . On January 13, 2009, the Newton County Superior Court revoked Petitioner's probation, and Petitioner was remanded to the Georgia Department of Corrections ("GDOC"). Id . On September 8, 2011, Petitioner completed his revocation sentence, and he was transferred to the Newton County Jail to await trial on the 2008 Newton County Charges.
On May 20, 2013, Petitioner pleaded guilty in the Superior Court of Newton County to selling cocaine, possessing cocaine with the intent to distribute, possessing a firearm during the commission of a felony, and possessing a firearm as a convicted felon. On that same day, the court imposed a forty-year sentence, with the first twenty years to be served in confinement. See Kelly v. Brown, No. 1:13-cv-988, Doc. 7, Ex. E (N.D.Ga. Nov. 26, 2014). Petitioner is currently serving a twenty-year term of imprisonment, to be followed by consecutive probationary terms of twenty and five years, based on his 2008 Newton County Charges.
On November 8, 2013, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Georgia. See Kelly v. Ga. Dep't of Corr., No. 5:13-cv-423 (M.D. Ga. Aug. 29, 2014). In that case, Petitioner challenged the calculation of his time served and asserted the following claims to support that he exhausted his state law remedies: (1) he filed a grievance, No. 154326 (the "Grievance"), with the GDOC, that was denied; (2) he appealed the denial of the Grievance to the Georgia Department of Offender Rehabilitation, which was also denied; and (3) on May 20, 2014, he filed a writ of mandamus in the Fulton County Superior Court ("Superior Court"), which he asserts was never "acknowledged, " to compel the GDOC to credit him for the time he served in jail after the 2008 Newton County Charges (the "Mandamus Action"). (Id. at 2-3; see also , Resp't Ex. 6 at 4).
On June 27, 2014, the Superior Court denied Petitioner's Mandamus Action because he did not file it "on the form required by the Administrative Office of the [c]ourts, " and directed the Superior Court clerk to reject the pleading for filing. (See id., Resp't Ex. 8).
On August 5, 2014, "immediately following the denial of [his mandamus] application which had been improperly submitted, " Petitioner re-filed it. (See Obj. at 1; see also Obj. at 16).
On August 29, 2014, the United States District Court for the Middle District of Georgia dismissed Petitioner's petition for lack of exhaustion. (See , Resp't Ex. 7). The court found that "[i]t is undisputed that no state court has considered the issues raised by Petitioner in his federal habeas petition" because "[p]etitioner assumes that an appeal to the GDOC and a petition for a writ of mandamus in the appropriate state court will necessarily have the same outcome." (See id., Resp't Ex. 6 at 3-4 (Hyles, M.J.), adopted by Resp't Ex. 7 (Treadwell, J.)). The court noted also that "[w]hile the [c]ourt cannot know what might come of a petition in state court, neither can Petitioner, and therefore, he must make the required attempt at the state judicial level to resolve the issues before filing in federal court." (See id. at 4). The court also rejected Petitioner's argument that he satisfied exhaustion because he filed a Mandamus Action in the Superior Court, noting that the Superior Court's delay in reaching a decision on Petitioner's Mandamus Action "had no bearing" on the court's decision. (Id.).
On July 18, 2014, Petitioner filed his Petition in this Court, pursuant to 28 U.S.C. § 2241, challenging the calculation of his sentence. (Pet. at 1). Petitioner asserts that he should receive "full... day for day" credit for the time that he served beginning on August 28, 2008, the date that he was initially taken into custody. (Pet. at 3). Petitioner concedes that he must exhaust his state remedies, and asserts that he has satisfied exhaustion, relying on the Grievance and his appeal preceding its denial. The arguments that Petitioner raises in this Petition are nearly identical to the arguments he raised in his petition that was dismissed by the United States District Court for the Middle District of Georgia. In his Petition, Petitioner also reiterates his general dissatisfaction with what he perceives is the Superior Court's excessive delay in deciding on his Mandamus Action. (Pet. at 2).
On October 27, 2014, Respondent filed its Motion to Dismiss.
On November 14, 2014, the Magistrate Judge issued her R&R, recommending that the Petition be dismissed without prejudice because Petitioner failed to exhaust his state court remedies. The Magistrate Judge further recommended that a certificate of appealability ("COA") be denied because reasonable ...