United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
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.
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).)
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. Petitioner also signed the instant federal
petition on August 29, 2017. (Id. at 15.)
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.
The Exhaustion Requirement
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
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).
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).
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.
Petitioner Failed to Exhaust State Remedies.
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 ...