United States District Court, N.D. Georgia, Atlanta Division
DR. MIKE REDFORD, Petitioner,
T.J. CONLEY, Warden, Respondent.
OPINION AND ORDER
WILLIAM S. DIJFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Janet F.
king's Final Report and Recommendation 
(“R&R”), recommending that Petitioner Dr.
Mike Redford's (“Petitioner”) Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 
(“Section 2254 Petition”) be denied, that this
action be dismissed, and that a certificate of appealability
be denied. Also before the Court are Petitioner's
Objections  to the R&R.
December 28, 2016, Petitioner filed his Section 2254
Petition, purporting to challenge his 2002 “conviction,
” in Gwinnett County state court, for reckless conduct.
Although Petitioner states that he was sentenced to
“six months” for his “conviction, ”
he also states that the Gwinnett County state court entered
an order of nolle prosequi dismissing the charges against
him. ( at 1-2). Petitioner seeks to “vacate [his]
Gwinnett County 2002 reckless conduct nolle prosequi.”
( at 2, 10). Petitioner currently is serving a ten-year
term of imprisonment for state court aggravated stalking
convictions in Douglas County. (R&R at 3); see
Redford v. State, 782 S.E.2d 791 (Ga.Ct.App. 2016).
January 27, 2017, the Magistrate Judge ordered Petitioner,
within thirty days, to pay the required filing fee or seek
leave to proceed in forma pauperis
(“IFP”). ( (“January 27 Order”)).
The Magistrate Judge warned Petitioner that his failure to
comply with these instructions would result in dismissal of
this action. (). On March 20, 2017, the Magistrate Judge
issued her R&R, recommending that this action be
dismissed for failure to comply with her January 27 Order and
for failure to state a claim. On March 27, 2017, Petitioner
filed his Objections to the R&R.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1). With
respect to those findings and recommendations to which
objections have not been asserted, the Court must conduct a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert.
denied, 464 U.S. 1050 (1984). Although Petitioner's
Objections are incoherent and frivolous, and are not required
to be considered, the Court elects to conduct a de
novo review of the record. See Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)
(“Parties filing objections to a magistrate's
report and recommendation must specifically identify those
findings objected to. Frivolous, conclusive, or general
objections need not be considered by the district
Petitioner's Section 2254 Petition
Section 2254 Petition seeks to “vacate [his] Gwinnett
County 2002 reckless conduct nolle prosequi.” ( at
2, 10). Section 2554 provides that “a district court
shall entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). “A
federal habeas petitioner must be ‘in custody'
under the conviction or sentence under attack at the time his
petition is filed.” Diaz v. State of Florida Fourth
Judicial Circuit ex rel. Duval Cty., 683 F.3d 1261, 1264
(11th Cir. 2012). “Nolle prosequi is the State's
formal action on its decision not to further prosecute an
indictment.” Buice v. State, 528 S.E.2d 788,
789 (Ga. 2000) (citation omitted). “It is well
established that entry of a nolle prosequi terminates the
prosecution pending on that indictment and that the State
cannot try a defendant on a charge that has been nol
Magistrate Judge found, and the Court agrees, that
“Petitioner simply fails to show that he is in custody
based on the 2002 nolle prosequi” that he challenges in
this action. (R&R at 4). The nolle prosequi
“terminate[d] the [Gwinnett County] prosecution”
against Petitioner in 2002, and thus did not result in a
conviction or sentence of confinement. Even if it did,
Petitioner has not shown that he remains in custody pursuant
to any conviction or sentence imposed in the Gwinnett County
state court case. The evidence shows that Petitioner's
Section 2554 Petition was filed when he was in custody
pursuant to aggravating stalking convictions in Douglas
County state court. Petitioner remains in custody pursuant to
these convictions, the validity of which he does not
challenge in this action. Petitioner's Section 2554
Petition is denied because he has not shown he was
“‘in custody' under the conviction or
sentence under attack at the time his petition [was]
filed.” Diaz, 683 F.3d at 1264; see Brewer
v. Escambia Cty. Sheriff's Dep't, No.
3:15-CV-550-LC-GRJ, 2016 WL 1084720, at *1 (N.D. Fla. Feb.
18, 2016) (finding that the pro se petitioner failed
to show he was “in custody” pursuant to a state
court judgment because “the disposition for the charge
against Petitioner for the offense identified in her Petition
was nolle prosequi”).
2. Certificate of Appealability
federal habeas “applicant cannot take an appeal unless
a circuit justice or a circuit or district judge issues a
certificate of appealability under 28 U.S.C. §
2253(c).” Fed. R. App. P. 22(b)(1). “The district
court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.”
Rules Governing Section 2254 Cases in the United States
District Courts, Rule 11(a). A court may issue a certificate
of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). A substantial
showing of the denial of a constitutional right
“includes showing that reasonable jurists could debate
whether (or, for that matter, agree ...