United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge John K. Larkin
III's Final Report and Recommendation 
(“R&R”) and Petitioner's Motion for
Compulsory Examination . The R&R recommends the Court
grant Respondent Cedric Taylor's Motion to Dismiss 
and deny Petitioner's Motion for Summary Judgment 
and motion for a hearing  as moot.
2011, a jury convicted Petitioner of rape and child
molestation. ([12-1] at 2). He was sentenced to life in
prison for rape and twenty years in prison for child
molestation. (Id.) He filed a motion for new trial,
which was denied in October 2014. (Id. at 3). He
filed a notice of appeal on November 16, 2014, which was
docketed with the Court of Appeals on August 27, 2015.
raised the following grounds on appeal: (1) his character was
impermissibly impugned by his trial counsel when he
mistakenly stated Petitioner had previously pled guilty to
the rape of two women; (2) the trial court erred by failing
to sua sponte declare a mistrial or give a curative
instruction immediately after the erroneous statement was
made; (3) the curative instruction given by the trial court
was insufficient; and (4) the trial court erred by denying
his motion for new trial based on his trial counsel's
ineffective assistance for making this statement. ([12-3]).
17, 2015, before the Georgia Court of Appeals had resolved
his direct appeal, Petitioner filed a pro se habeas
corpus petition in the Superior Court of Fulton County. ([20
at 2]). On June 24, 2015, Petitioner's state habeas
petition was dismissed without prejudice as premature because
his conviction was not yet final. (Id.) On June 22,
2016, the Georgia Court of Appeals affirmed Petitioner's
conviction and sentence. Fambro v. State, No.
A16A0040 (Ga.App. June 22, 2016), ([12-3] at 12). It does not
appear that Petitioner filed another habeas corpus petition
in state court.
filed the present petition on April 11, 2017, and an amended
petition on May 15, 2017. (, ). Petitioner asserts the
following grounds: (1) a medical examination that would show
no rape occurred was concealed at trial; (2) Officer James
McNatt committed fraud in his investigation of
Petitioner's case; (3) the evidence of similar
transactions presented by the prosecution was too remote and
inflammatory; and (4) he had three new trials. ( at 6).
filed an answer and a motion to dismiss on June 15, 2017.
(, ). Petitioner filed a response to the motion to
dismiss () on July 17, 2017, and a motion for summary
judgment () on September 25, 2017. Respondent filed a
brief in response to the motion for summary judgment on
October 11, 2017. (). Petitioner filed a supplemental
brief on October 27, 2017, and a motion to compel a hearing
date on November 30, 2017. (, ). Respondent filed a
supplemental brief in support of his motion to dismiss on
December 8, 2017. (). Petitioner filed a “Motion
for Compulsory Examination” on December 11, 2017,
pursuant to 28 U.S.C. § 2254, asserting the same grounds
cited in his amended petition of May 15, 2017.
December 12, 2017, the Magistrate Judge issued his R&R.
(). The Magistrate Judge found that Plaintiff failed to
exhaust his available administrative remedies. He recommends
the Court grant Defendants' Motion to Dismiss, dismiss
this action without prejudice for lack of exhaustion, and
deny a certificate of appealability. Petitioner did not file
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, 732 (11th Cir. 1982) (per curiam). 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). Where, as here, no party has objected to
the report and recommendation, the Court conducts only a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
federal court may issue a writ of habeas corpus on behalf of
a person held in custody pursuant to a judgment of a state
court if that person is held in violation of his rights under
federal law. 28 U.S.C. § 2254(a). A district court may
not grant an application for writ of habeas corpus unless -
(A) the applicant has exhausted the remedies available in the
courts of the State; or (B)(i) there is an absence of
available State corrective process; or (ii) circumstances
exist that render such process ineffective to protect the
rights of the applicant. 28 U.S.C. § 2254(b)(1). To
exhaust state remedies, a petitioner must present his claims,
on direct appeal or collateral review, to the highest state
court of review according to that state's appellate