United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Leburn Myers has filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254, challenging various defects in
his state criminal case. 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 dismissed as prematurely
state criminal case remains open, though well aged. Doc. 1 at
1 & 16 (complaining that he has not been convicted or
acquitted due to a “40 month delay in processing [his]
case”). The state court's docket reflects an active
docket: competency evaluations, evidentiary hearings, and the
withdrawal of counsel have taken their toll on the expedient
resolution of the case. See State v. Myers,
CR15-0463 (Chatham County Super. Ct.). Indeed, trial has been
set and then continued, and Myers is proceeding pro
se in his own defense. Id. In other words, it
is not apparent that the delay in resolving his underlying
criminal case is unexplained or unwarranted. He has not,
however, had his trial by a jury of his peers. Despite the
fact that his criminal prosecution is still ongoing, he seeks
federal habeas relief under § 2254.
own admission, Myers has yet to be sentenced or convicted,
and thus there is no state court “judgment” for
this Court to review under 28 U.S.C. § 2254 (which
applies only to prisoners held “in custody pursuant to
the judgment of a State court.”) (emphasis
added). Even if such a judgment had been entered, it is clear
that his petition is not yet ripe for review for he's yet
to exhaust his available state remedies by filing a direct
appeal or seeking state habeas relief. 28 U.S.C. §
2254(1)(b)(1)(A) (a petition for a writ of habeas corpus
“shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts
of the [convicting] State.”); Younger v.
Harris, 401 U.S. 37, 53-54 (1971) (except in
extraordinary circumstances, a federal court must abstain
from deciding issues in an ongoing criminal proceeding in
state court); Maharaj v. Sec'y for Dep't of
Corrs., 304 F.3d 1345, 1348-49 (11th Cir. 2002) (a
§ 2254 petition for habeas corpus relief is not ripe for
review where the challenged state convictions and sentences
are not final at the time of filing).
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. §
REPORTED AND RECOMMENDED.
 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 v. Weber,
544 U.S. 269, 277 (2005).
The Court also notes that, among his complaints of
defects in his state criminal proceedings, Myers raises a
claim for malicious prosecution. See doc. 1 at 2-28.
That claim is properly brought in the form of a 42 U.S.C.
§ 1983 civil rights complaint. See Wood v.
Kesler, 323 F.3d 872, 881 (11th Cir. 2003). But a
requisite element of a malicious prosecution claim is that
the criminal prosecution has been terminated in
plaintiff's favor. That clearly has not (yet) happened
here. Myers therefore cannot bring suit challenging the
wrongfulness of the state's prosecution until it is
terminated in his favor or his conviction is overturned on
appeal or through a successful collateral challenge.
In sum, whether construed as a habeas
petition or § 1983 complaint, Myers alleges no facts
upon which this Court could even conceivably grant relief. He
must first resolve his state prosecution (in other words, get
a final judgment) and, if he is convicted, then must
properly exhaust his state administrative remedies before
seeking federal habeas relief. See Wilkinson v.
Dotson, 544 U.S. 74, 78-79 (2005) (federal “habeas
corpus actions require a petitioner fully to exhaust state
remedies”); 28 U.S.C. §§ 2254(b), (c). Absent