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Keith v. Berry

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

November 9, 2017

PAUL KEITH, Petitioner,
v.
WALTER BERRY, Warden, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE

         Petitioner brings this case pursuant to 28 U.S.C. § 2254, and seeks permission to proceed in forma pauperis (“IFP”). Upon initial review pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Court REPORTS and RECOMMENDS Petitioner's motion to proceed IFP be DENIED AS MOOT, (doc. no. 2), the petition be DISMISSED without prejudice, and this civil action be CLOSED.

         I. BACKGROUND

         Petitioner states he pleaded guilty in the Superior Court of Richmond County to Criminal Damage, Aggravated Assault, Possession of a Firearm During a Crime, and Possession of a Firearm by a Convicted Felon. (Doc. no. 1, p. 1, (citing State v. Keith, 2013-RCCR-481).) He further states he was sentenced on April 2, 2015, to nine years of imprisonment and five years of probation. (Id.) On direct appeal to the Georgia Court of Appeals, Petitioner unsuccessfully argued his guilty plea was not knowing and voluntary. (Id. at 2 (citing Keith v. State, A16A2181, remittitur date, Nov. 10, 2016).)

         In addition to his counseled direct appeal, on August 21, 2017, Petitioner filed a pro se motion in the trial court to modify his sentence, arguing he had ineffective assistance of counsel, and Petitioner states the motion is pending. (Id. at 3-4.) Publicly available court records confirm not only that Petitioner has the pending motion to modify his sentence, but also that he filed a “Pro Se Petition for Post Conviction Relief” in the trial court on August 29, 2017.[1] Petitioner also signed the instant federal petition on August 29, 2017. (Id. at 15.)

         Petitioner originally filed his case in the Middle District of Georgia, but United States District Judge W. Louis Sands transferred the case to the Southern District of Georgia on November 1, 2017. (See doc. no. 4.) Petitioner claims in the federal petition he received ineffective assistance of trial counsel because (1) there was not an adequate investigation of his case, and (2) there was no request for a competency hearing prior to the guilty plea proceedings. (Id. at 5.)

         II. DISCUSSION

         A. 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 the Georgia Supreme Court means that [the petitioner] has failed to exhaust all of his available state remedies.” Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004).

         When a petitioner files a “mixed” petition, including both exhausted and unexhausted claims, a court has the option of issuing a stay and holding the petition in abeyance to allow the petitioner to return to the state court to exhaust his remedies as to the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275-77 (2005). However, the stay and abeyance procedure should only be used in limited circumstances when a court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Id. at 277. Petitioner has not presented any exhausted claims in the present petition, and therefore, the stay and abeyance procedure is inapplicable.

         B. Petitioner Failed to Exhaust State Remedies.

         Petitioner concedes he has state post-conviction proceedings pending in which he raises ineffective assistance of counsel claims. (Doc. no. 1, pp. 3-4.) Indeed, as described above, records from the Superior Court of Richmond County ...


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