United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
after a jury trial of burglary, armed robbery, and
impersonating a police officer, Israel Moses Jones has filed
a Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254, alleging various defects in his state criminal cases.
Doc. 1. He also seeks leave to file his § 2254 petition
in forma pauperis (IFP). Doc. 2. Finding him
indigent, the Court GRANTS his IFP motion.
Preliminary review under Rule 4 of the Rules Governing
Section 2254 Cases shows, however, that his petition must be
state habeas petition was denied on March 14, 2016.
See doc. 1 at 3. His appeal to the Georgia Supreme
Court (or perhaps petition for a certificate of probable
cause to appeal, as his petition is unclear) remains pending,
a delay that he finds unacceptable. Id. at 5
(arguing due process has been violated due to the Georgia
Supreme Court's two-year delay in “adjudicating . .
. the appeal.”). So Jones seeks federal habeas relief
instead, arguing that the Court should either reach the
merits sua sponte -- as the state courts have proved
unable to do so speedily enough for his satisfaction -- or
impose a deadline on the state habeas courts. Id. at
seeking § 2254 relief, petitioners must “fairly
present” their claims to state courts to give them a
“full and fair opportunity to resolve federal
constitutional claims.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. §
2254(b)(1)(A) (habeas petitioners must “exhaust[ ] the
remedies available in the courts of the State” before
seeking federal relief); see also Reedman v. Thomas,
305 Fed.Appx. 544, 546 (11th Cir. 2008) (“Generally,
when a petitioner has failed to exhaust state remedies, the
district court should dismiss the petition without prejudice
to allow exhaustion.”).
by his own admission, has yet to do that. He must fully
exhaust his “right under the law of the State to raise,
by any available procedure, the question
presented.” 28 U.S.C. § 2254(c) (emphasis added).
That includes awaiting the Georgia Supreme Court's final
decision on his appeal, even if that process takes longer
than he prefers. This Court cannot step in and
“excuse” Jones' failure to exhaust simply
because he is impatient. Doc. 1 at 5; see Horowitz v.
Wainwright, 709 F.2d 1403, 1404 (11th Cir. 1983)
(allowing simultaneous federal and state habeas proceedings
offends the principles of comity that underlie the exhaustion
it “plainly appears from the petition . . . that the
petitioner is not entitled to relief” at this time, the
Court “must dismiss the petition and direct the clerk
to notify the petitioner.” Rule 4, Rules Governing
Section 2254 Cases. Accordingly, this petition should be
DISMISSED without prejudice for lack of
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
the Certificate of Appealability (COA) standards, which are
set forth in Brown v. United States, 2009 WL 307872
at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no
COA-worthy issues at this stage of the litigation, so no COA
should issue. 28 U.S.C. § 2253(c)(1); see
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000) (approving sua sponte denial of COA before
movant filed a notice of appeal). And, as there are no
non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith. Thus, in forma pauperis
status on appeal should likewise be DENIED.
28 U.S.C. § 1915(a)(3).
REPORTED AND RECOMMENDED
 Excessive delay can excuse the
exhaustion requirement. See Hollis v. Davis, 941
F.2d 1471, 1475 (11th Cir. 1991) (exhaustion can be waived as
futile where the state court has delayed relief without
explanation or reason). But less than a two-year delay for a
ruling on the merits, without more, does not bring Jones
under the futility exception to § 2254. See, e.g.,
Hughes v. Stafford, 780 F.2d 1580, 1582 (11th Cir. 1986)
(even an eight year delay is not enough). This Court should
not intervene in the proceedings yet pending before the
Georgia Supreme Court. Jackson v. Walker, 206
Fed.Appx. 967, 968-69 (11th Cir. 2006) (“Even in cases
where the claims of defects in the state correctional system
presented by a prisoner may ‘rise to a constitutional
level involving the denial of due process, ' our
precedent has expressed a desire that such claims be first
presented in a state forum.” Reynolds v.
Wainwright, 460 F.2d 1026, 1027 (5th Cir.
 A stay of this case is also not
warranted, as petitioner has made no showing of “good
cause” for his “failure to exhaust his claims
first in the state court.” Rhines ...