United States District Court, S.D. Georgia, Brunswick Division
ORDER and MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
R. STAN BAKER, Magistrate Judge.
Petitioner Antinto Johnson ("Johnson"), who is currently housed at Calhoun State Prison in Morgan, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 contesting his convictions obtained in the Appling County Superior Court. (Doc. 1.) Respondent filed an Answer-Response and a Motion to Dismiss. (Docs. 6, 7.) Johnson filed a document which was docketed as a Response to Respondent's Motion to Dismiss as well as a Motion to Stay. (Docs. 10, 11.) For the reasons which follow, it is my RECOMMENDATION that Respondent's Motion to Dismiss be GRANTED, Johnson's Petition be DISMISSED, without prejudice, and this case be CLOSED. It is also my RECOMMENDATION that Johnson be DENIED a certificate of appealability and leave to proceed in forma pauperis on appeal.
Johnson was found guilty of aggravated battery, in violation of O.C.G.A. § 16-5-24, and obstruction of a law enforcement officer, in violation of O.C.G.A. § 16-10-24(b), in the Appling County Superior Court on April 23, 2014. (Doc. 8-1, p. 1.) Johnson was sentenced to 20 years' imprisonment on the battery charge and to five (5) years' probation on the obstruction charge, to be served consecutively. (Id. at p. 60.) On May 19, 2014, Johnson filed a motion for new trial. (Id. at p. 72.) Johnson filed a brief in support of his motion on September 15, 2014. (Id. at p. 84.) The State filed a response on September 30, 2014, and Johnson filed a reply on October 16, 2014. (Id. at p. 91; Doc. 8-2, p. 7.) As of the date Respondent's Motion to Dismiss was filed on February 12, 2015, the Appling County Superior Court had not entered a ruling on Johnson's motion. (Doc. 7-1, p. 2.)
In his Petition, which was filed on December 1, 2014, Johnson maintains he was not allowed to provide his account of events on the date of the offenses for which he was convicted. (Doc. 1, p. 5.) Johnson also objects to the sentence he received, because the other people involved suffered no consequences from the events giving rise to his convictions. (Id. at p. 8.)
Respondent asserts Johnson's conviction is not "final" under Georgia law, and he has not pursued any post-conviction remedies which will be available to him once his conviction is final. Thus, Respondent avers, Johnson's petition is due to be dismissed because he has failed to exhaust his state court remedies. (Doc. 7-1, pp. 2-3.)
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The United States Supreme Court has held that "a state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement" when discretionary review "is part of the ordinary appellate review process in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 847 (1999). Therefore, in order to exhaust state remedies, "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 exhaustion requirement also extends to a state's collateral review process. Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir. 2012); Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004). Failure to exhaust all claims or to demonstrate that exhaustion is futile prior to bringing a Section 2254 petition requires that the petition be dismissed. See Nelson v. Schofeld, 371 F.3d 768, 771 (11th Cir. 2004), superseded by rule on other grounds as recognized in Hills v. Washington, 441 F.3d 1374 (11th Cir. 2006).
While a state prisoner's failure to exhaust his remedies in state court ordinarily will result in the automatic dismissal of his federal habeas petition, this is not always true. See 28 U.S.C. §§ 2254(b) & (c). First, a court may deny a petition on the merits without requiring exhaustion "if it is perfectly clear that the applicant does not raise a colorable federal claim." Granberry v. Greer, 481 U.S. 129, 135 (1987); 28 U.S.C. § 2254(b)(2). The State may also explicitly waive the exhaustion requirement. Hills, 441 F.3d at 1376. Finally, a court should not require exhaustion if it has been shown that "there is an absence of available State corrective process, " or that "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B). ...