United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE
formerly detained at Cecil Moore Detention Center in
Washington, Georgia, brings the above-styled action pursuant
to 28 U.S.C. § 2254. For the reasons set forth below,
the Court REPORTS and
RECOMMENDS this case be
DISMISSED without prejudice and this civil
action be CLOSED.
commenced this action by submitting a habeas corpus petition
to the Northern District of Georgia on March 16, 2018,
(see doc. no. 1), but he did not pay the $5.00
filing fee or submit a motion to proceed in forma
pauperis (“IFP”). On March 22, 2018, United
States Magistrate Judge Justin S. Anand transferred the
petition to the Southern District of Georgia because
Petitioner was attempting to challenge convictions and
sentences from Wilkes County, Georgia. (Doc. no. 2.) Upon
transfer to this District, the Clerk of Court sent Petitioner
a deficiency notice explaining he must, within twenty-one
days, either pay the $5.00 filing fee or submit the enclosed
IFP motion. (Doc. no. 5.) The Clerk's notice also stated,
“Failure to comply with this notice may result in
dismissal by the Court.” (Id.) The Clerk's
deficiency notice was returned as undeliverable, (doc. no.
6), and Petitioner has not otherwise contacted the Court.
The Petition Should Be Dismissed Because Petitioner Failed to
Exhaust State Remedies.
procedural history of Petitioner's underlying case, as
well as the exact nature of Petitioner's claims for
federal habeas relief, are not clear from the minimal
information provided in the petition. Nevertheless, the Court
can discern the following.
states he was convicted on February 22, 2018, of felony
obstruction of an officer and was sentenced to serve two
years of a five-year sentence in confinement. (Doc. no. 1, p.
1.) Petitioner further states he did not file an appeal of
his judgment of conviction but did file a “motion to
show cause re: patent infringement” in the Superior
Court of Wilkes County. (Id. at 3, 12.)
Petitioner's one ground for relief in his federal habeas
corpus petition states, “Challenge the Court's
Jurisdiction.” (Id. at 5.) Additionally,
Petitioner states he filed motions to challenge the
court's jurisdiction, but his motions were ignored.
(Id. at 4-8.) Confusingly, Petitioner states that he
did, and did not, file a motion and/or state habeas corpus
petition, but he also contends he was never given an
opportunity “to raise the issue.” (Id.
The Exhaustion Requirement
the Anti-Terrorism and Effective Death Penalty Act of 1996,
110 Stat. 1214, 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
Fed.Appx. 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 Failed to Exhaust State Remedies.
does not allege that he has exhausted his state court
remedies. As explained above, Petitioner has been unable to
consistently state whether he has filed for any kind of
post-conviction relief, let alone identify what type of
relief he may have sought. Moreover, as Petitioner states he
was convicted and sentenced on February 22, 2018, his federal
petition was filed in the Northern District of Georgia even
before the thirty days allowed for filing a direct appeal had
expired. See O.C.G.A. § ...