United States District Court, S.D. Georgia, Augusta Division
HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation, to which objections have been filed (doc. no.
7). Petitioner provides no information to change the
Magistrate Judge's analysis that the petition, filed
pursuant to 28 U.S.C. § 2254, is due to be dismissed
because Petitioner has not exhausted all of his claims in
state court. Only two objections warrant further comment.
rather than dispute the state habeas courts are available to
him to raise his ineffective assistance of appellate counsel
claims, Petitioner suggests the state courts will not rule
fairly on his petition. As a matter of comity, the state
courts generally must be afforded a fair opportunity to hear
claims raised in a habeas corpus petition challenging custody
resulting from a state court judgment. Picard v.
Connor, 404 U.S. 270, 275 (1971). However,
"[c]omity does not require that the federal courts
decline to exercise jurisdiction in the face of allegations
that the state courts have been presented with the merits of
a claim for habeas corpus relief and have, for one reason or
another, refused or been unable to act upon the claim."
St. Jules v. Beto. 462 F.2d 1365, 1366 (5th Cir.
regard, "[a] federal habeas petitioner need not
wait until his state petitions for relief are exhausted, if
the state court has unreasonably or without explanation
failed to address petitions for relief." Hollis v.
Davis, 941 F.2d 1471, 1475 (11th Cir. 1991); see
also Reynolds v. Wainwright 460 F.2d 1026, 1027 (5th
Cir. 1972) (ruling that an inordinate delay can, under
certain circumstances, excuse exhaustion). However, the Court
must be mindful that "state courts are the principal
forum for asserting constitutional challenges to state
convictions." Harrington v. Richter, 562 U.S.
86, 103 (2011). Indeed, the exhaustion requirement ensures
"that state proceedings are the central process, not
just a preliminary step for a later federal habeas
the record shows it took approximately seven years to rule on
Petitioner's motion for new trial, as Petitioner has not
even filed a state habeas petition, there is no indication of
any such delay in state habeas proceedings. Moreover,
Petitioner has simply decided for himself, without ever
giving the state habeas court a chance to rule, let alone
providing substantiated evidentiary proof, that his rights
will not be analyzed in accordance with the law. Such
conclusory assertions cannot excuse exhaustion.
Petitioner's concern that his federal statute of
limitations will expire while he pursues state habeas relief
is unfounded. Pursuant to 28 U.S.C. § 2244(d)(2), the
one-year statute of limitations does not run while a properly
filed application for state post-conviction relief or other
collateral review is pending in state court. Cramer v.
Sec'y, Dep't of Corr., 461 F.3d 1380, 1383 (11th
Cir. 2006). The Supreme Court of Georgia affirmed the trial
court's ruling on the motion for new trial on November
21, 2016. Herrington v. State, 794 S.E.2d 145, 150
(Ga. 2016). Thus, Petitioner's one-year statute of
limitations for seeking federal habeas corpus relief has not
yet expired, and Petitioner still has the opportunity to
avail himself of the tolling provision in § 2244(d)(2)
by properly filing an application for state habeas corpus
relief in the state courts.
the Court OVERRULES the objections and ADOPTS the Report and
Recommendation of the Magistrate Judge as its opinion.
Therefore, the motion to proceed in forma pauperis
is DENIED AS MOOT, (doc. no. 4), Commissioner Homer Bryson is
added as a Respondent, and this petition filed pursuant to
§ 2254 is DISMISSED without prejudice for failure to
prisoner seeking relief under § 2254 must obtain a
certificate of appealability ("COA") before
appealing the denial of his application for a writ of habeas
corpus. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a) to the Rules Governing Section
2254 Proceedings. This Court should grant a COA only if the
prisoner makes a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). For
the reasons set forth in the Report and Recommendation, and
in consideration of the standards enunciated in Slack v.
McDaniel 529 U.S. 473, 482-84 (2000), Petitioner has
failed to make the requisite showing. Accordingly, the Court
DENIES a COA in this case. Moreover, because there are no
non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith, and Petitioner is not entitled to
appeal in forma pauperis. See 28 U.S.C. §
the foregoing, the Court CLOSES this civil action.
Under Bonner v. City of
Prichard, the Eleventh Circuit adopted as binding
precedent all Fifth Circuit decisions that were handed down
prior to the close of business on September 30, 1981. 661
F.2d 1206, 1209 (11th Cir. \98\) (en banc).
"If the court denies a
certificate, the parties may not appeal the denial but may
seek a certificate from the court of appeals under Federal
Rule of Appellate Procedure 22." Rule 11(a) to the Rules