United States District Court, S.D. Georgia, Dublin Division
case brought pursuant to 28 U.S.C. § 2241, Petitioner
Michael Alonza Rufus challenged the decision of the state
parole board to deny him consideration for parole. The case,
however, was dismissed upon a finding that Petitioner had
failed to exhaust his state judicial remedies as required by
28 U.S.C. § 2254. In particular, the United States
Magistrate Judge pointed out in his Report and Recommendation
that Petitioner's Application for a Certificate of
Probable Cause ("CPC") in his state habeas
proceeding was pending in the Supreme Court of Georgia.
(See Report and Recommendation of July 5, 2017, Doc.
No, 2, at 4 (citing source omitted}.}
objected to this determination in the Report and
Recommendation because the CPC application in his state
habeas case had not been ruled upon within two terms of court
as required by the Georgia Constitution. See Ga.
Const, art. VI, § 9, ¶ II. Thus, Petitioner argued
that the Georgia Supreme Court now lacks jurisdiction to
adjudicate the matter, which necessarily means his state
judicial remedies have been exhausted. (See Doc. No.
4, at 4.)
Court adopted the Report and Recommendation over this
objection. (See Order of Aug. 11, 2017, Doc. No. 5.)
First, the Court determined that a CPC application does not
fall under the Georgia Constitution's two-term
requirement. (Id. at 2.) Second, upon determining
that an application for a CPC need only be decided within a
reasonable time after filing, the Court concluded
that a just over one-year time period is not unreasonable.
(Id.) Accordingly, Petitioner's objection was
overruled, and the determination that Petitioner had not
exhausted his state judicial remedies was adopted by this
Court. (Id. at 2-3.)
October 16, 2017, this Court granted a Certificate of
Appealability pursuant to 28 U.S.C. § 2253(c)(2). The
Court determined that whether a one-year time period for
deciding whether to grant or deny a CPC application is
reasonable is a matter upon which reasonable jurists could
debate. In granting the Certificate of Appealability, this
Court stated that if a one-year time period to rule upon an
application for a CPC is unreasonable, then Petitioner's
constitutional right to due process and to petition this
Court for a writ of habeas corpus has been abridged. (See
Order of Oct. 16, 2017, at 3.)
October 7, 2017, the Eleventh Circuit Court of Appeals
vacated the Certificate of Appealability issued by this
Court, pointing out that the issue of the reasonableness of a
one-year time period for deciding a CPC is only a
"debatable procedural issue." (11th Cir.
Mandate, Doc. No. 14, at 3.) The Eleventh Circuit stated that
this Court failed to specify an underlying constitutional
claim by Petitioner on which he has made a substantial
showing of the denial of his rights. (Id.) The
Eleventh Circuit remanded the case to this Court for a
determination of whether this case "involves an
underlying error of constitutional magnitude." See
Spencer v. United States, 773 F.3d 1132, 1137
(11th Cir. 2014) (cited in
11th Cir. Mandate, Doc. No. 14.)
Spencer, the Eleventh Circuit outlined the
gatekeeping requirements of granting a Certificate of
Appealability. The Spencer court stated: "Even
when a prisoner seeks to appeal a procedural error, the
certificate must specify the underlying constitutional
issue." Id. at 1138 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000) ("When the
district court denies a habeas petition on procedural grounds
without reaching [the merits of] the prisoner's
underlying constitutional claim, a [Certificate of
Appealability] should issue [only] when the prisoner shows .
. . that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling."
(emphasis added)); see also Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (" Under the controlling
standard, a petitioner must 'sho[w] that reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were "adequate to
deserve encouragement to proceed further."'").
Thus, a Certificate of Appealability determination requires
an overview of the claims in the underlying habeas petition
and a general assessment of their merits. Miller-El,
537 U.S. at 336. The Eleventh Circuit explained that failure
to specify the underlying constitutional issue would result
in the vacatur of the Certificate of Appealability.
Spencer, 773 F.3d at 1138.
in its Remand Order, the Eleventh Circuit asked this Court to
revisit the issuance of a Certificate of Appealability in
conformity with Spencer and 28 U.S.C. §
2253(c)(2). (Doc. No. 14, at 3.) With this guidance and upon
a further review of the relevant law, this Court has examined
the underlying petition and has determined that a Certificate
of Appealability should not issue in this case. This is
because Petitioner has not shown that the issues raised in
his habeas petition are adequate to deserve encouragement to
proceed further. Accordingly, Petitioner is not entitled to a
Certificate of Appealability in this case. Therefore, ...