United States District Court, S.D. Georgia, Savannah Division
KENNETH B. HAGGINS, JR., Petitioner,
PRIDE INTEGRATED SERVICE, INC., Respondent.
REPORT AND RECOMMENDATION
Haggins filed a 28 U.S.C. § 2241 habeas petition on
November 15, 2016. Doc. 1. He was convicted of possession of
less than an ounce of marijuana with intent to distribute in
violation of O.C.G.A. § 16-13-30(j)(1), and sentenced to
some (unspecified) length of time under the supervision of
probation. 7c?. at 2. He originally sought to suppress the
fruits of the search of his friend's vehicle
(particularly the marijuana recovered during that search),
but lost the motion, and filed no appeal. Id. at
28 U.S.C. § 2241, Haggins seeks relief from the onerous
burdens of state probation service Pride Integrated Services,
Inc.,  objecting that his liberty has been
"restrain[ed]" by his "unlawful conviction and
sentence" and that he has been locked into an
unconstitutional "contract" with the probation
service. Id. at 1. He further seeks to unwind the
criminal judgment entirely, arguing that the Superior Court
"unlawfully denied [his] Motion to Suppress and that all
hearings after such hearing are considered null and
void." Id. at 4.
habeas petitions, however, require that state remedies be
exhausted. Wilkinson v. Dotson, 544 U.S. 74, 79
(2005) (all habeas corpus actions "require a petitioner
to fully exhaust state remedies"); Thomas v.
Crosby, 371 F.3d 782, 812 (11th Cir. 2004) (Tjoflat, J.,
concurring) ("Among the most fundamental common law
requirements of § 2241 is that petitioners must first
exhaust their state court remedies."). And Haggins has
admitted that he didn't bother exhausting his state-court
remedies. Doc. 1 at 2 ("Petitioner has exhausted state
remedies by allowing the 30 day period to file an appeal run
it[s] course after his conviction. Therefore, a state remedy
is not available.").Therefore, his petition should be
DISMISSED WITHOUT PREJUDICE so that he may exhaust available
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
 Federal courts have jurisdiction to
entertain habeas corpus petitions "only from persons who
are 'in custody in violation of the Constitution
or laws or treaties of the United States.'"
Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28
U.S.C. § 2241(c)(3)). The term is construed "very
liberally, " however, Howard v. Warden, 776
F.3d 772, 775 (11th Cir. 2015), and is "not.. .
restricted to situations in which the applicant is in actual,
physical custody, " Jones v. Cunningham, 371
U.S. 236, 239 (1963). "Instead, petitioners need only
show that they are subject to a significant restraint on
their liberty that is not shared by the general public."
Howard, 776 F.3d at 775 (noting petitioners released
on parole, on their own recognizance pending execution of a
sentence, and on bail all qualify); see also Stacey v.
Warden, Apalachee Corr Inst, 854 F.2d 401, 403 (11th
Cir. 1988) (the term "in custody" requires that the
state exercise some control over the petitioner); Samirah
v. O'Connell, 335 F.3d 545, 549 (7th Cir. 2003)
("Although the word 'custody' is elastic, all
definitions of it incorporates some concept of ongoing
control, restraint, or responsibility by the
custodian."). Probation, a state-supervised
good-behavior-contingent form of release, is a type of
"custody" for § 2241 purposes. Reilly v.
Dep't of Corr., 847 F.Supp. 951, 956 (M.D. Fla. 1994)
("probationary restraint is within the meaning of
 Petitioner relies on Fay v.
Noia, 372 U.S. 391 (1963), to allow him to bypass state
habeas relief entirely. But Fay only stood for the
proposition that a § 2254 petitioner may - if
state habeas remedies are unavailable or would be a futile
pursuit - be excused from exhaustion. It has no effect here,
under a different framework for habeas relief,
particularly given that nothing in the petition indicates
Haggins tried and failed to seek relief in the state courts,
that such relief was in any way unavailable to him, or that
seeking it would have been an exercise in futility. He
whiffed on the deadline to appeal his sentence and he dropped
the ball entirely to seek state habeas relief. He cannot now
come to the federal courts to unwind that sentence.
Even were Haggins to timely exhaust his
state habeas remedies before seeking federal habeas relief,
this Court's power to correct an alleged state court
mistake regarding the application of the Fourth Amendment
exclusionary rule is not ...