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Herrington v. Laughlin

United States District Court, S.D. Georgia, Augusta Division

January 13, 2017

ANTHONY HERRINGTON, Petitioner,
v.
VANCE LAUGHLIN, Warden, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Petitioner brings the above-captioned case pursuant to 28 U.S.C. § 2254, and seeks permission to proceed in forma pauperis (“IFP”). This case is before the Court for initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The Court REPORTS and RECOMMENDS that Petitioner's motion to proceed IFP be DENIED AS MOOT, (doc. no. 4), Commissioner Homer Bryson be added as a Respondent, the petition be DISMISSED without prejudice, and this civil action be CLOSED.

         I. BACKGROUND

         On October 30, 2007, a grand jury sitting in Burke County, Georgia, indicted Petitioner and three co-defendants for malice murder, felony murder based on aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Herrington v. State, -S.E.2d-, No. S16A0745, 2016 WL 6833055 at *4 n.1 (Ga. Nov. 21, 2016). Two co-defendants pleaded guilty to reduced charges, one co-defendant was convicted of felony murder and other crimes, and at a trial conducted from October 27 to 30, 2008, a jury convicted Petitioner of felony murder but acquitted him of malice murder and possession of a firearm by a convicted felon. Id. Petitioner was sentenced to life in prison. (Doc. no. 3, p. 1.)[1] The trial court denied Petitioner's twice-amended motion for new trial on August 14, 2015. Herrington, 2016 WL 6833055 at n.1

         On direct appeal to the Supreme Court of Georgia, Petitioner contended “that the evidence presented at trial was insufficient to support his conviction, that the trial court gave an improper jury instruction on aggravated assault, that his motion for mistrial based on the prosecutor's questions during voir dire was improperly denied, and that his trial counsel provided ineffective assistance.” Id. at *1. The Georgia Supreme Court rejected all of Petitioner's arguments and affirmed the judgment of the trial court on November 21, 2016. Id. at *4.

         Petitioner did not seek state habeas corpus relief but moved directly to filing the instant federal habeas corpus petition, in which he again argues the trial court gave an improper jury instruction on aggravated assault, his motion for mistrial based on the prosecutor's questions during voir dire was improperly denied, and his trial counsel provided ineffective assistance. (Doc. no. 3, pp. 5-9.) Petitioner also adds a multi-part ineffective assistance of appellate counsel claim, which he explains is not exhausted because the challenge to counsel's performance on direct appeal could not have been raised prior to the resolution of his direct appeal to the Georgia Supreme Court. (Id. at 10.)

         II. DISCUSSION

         A. Commissioner Bryson Should Be Added as a Respondent.

         Petitioner is currently incarcerated at Wheeler Correctional Facility (“WCF”), a “private prison” operated by a corporation pursuant to a contract with the Georgia Department of Corrections (“DOC”). Stephens v. Laughlin, CV 115-151, doc. no. 6 (S.D. Ga. Oct. 16, 2016) (explaining “private prison” relationship between WCF and DOC in habeas corpus case brought by inmate at WCF).[2] The Warden at that facility, Vance Laughlin, is currently the named Respondent in this case, but he is an employee of the corporation running the prison, not a state employee. Pursuant to 28 U.S.C. § 2242, an application for a writ of habeas corpus shall allege the name of the person having custody over Petitioner; however, Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts states that “the petition must name as respondent the state officer who has custody.” Furthermore, the Advisory Committee Notes to the cited provision explain that the proper person to be named is either the person having custody over the applicant or the chief officer in charge of the state's penal institutions.

         Here, although Warden Laughlin is responsible for running the “private prison” in which Petitioner is incarcerated, he is not a “state officer.” The Commissioner of the Department of Corrections is the officer in charge of Georgia's penal institutions. See O.C.G.A. § 42-2-6. Accordingly, Commissioner Homer Bryson should be added as a Respondent in this case.

         B. The Exhaustion Requirement

         Under the Anti-Terrorism and Effective Death Penalty Act of 1996, (“AEDPA”), 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). 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).

         “A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.” Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003). The exhaustion requirement applies with equal force to all constitutional claims. See Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1353-54 (11th Cir. 2012); see also Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992). “Ultimately, ‘to exhaust state remedies fully[, ] the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (citation omitted).

         “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. App'x 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). Moreover, in Georgia, a petitioner's “failure to apply for a certificate of probable cause to appeal the denial of his state habeas petition to ...


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