United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Ray Johnson has filed an application for habeas corpus under
28 U.S.C. § 2254, asserting claims for relief that he
concedes have not been “presented to the highest state
court having jurisdiction, ” doc. 1 at 12, and
therefore are not “exhausted” as required by
§ 2254(b)(1)(A).He contends, however, that the state habeas
court has stymied his efforts to exhaust those claims through
excessive delay in issuing a final decision, thus precluding
any state appellate review. This clog in the processing of
his state habeas case, he reasons, has left him with
“no other recourse” than petitioning for federal
habeas relief. Doc. 1 at 14. Because Johnson still has an
available state procedure that he has yet to utilize, his
futility argument fails and his petition should be dismissed
for lack of exhaustion.
is serving a 20-year sentence for aggravated assault,
terroristic threats, and tampering with evidence, a sentence
imposed by the Chatham County Superior Court on September 6,
2012. Doc. 1 at 1. That conviction was affirmed on direct
appeal on March 13, 2014. Id.; Johnson v.
State, 326 Ga.App. 220 (2014). Shortly after his
conviction, and before his direct appeal was decided, Johnson
filed a state habeas petition listing numerous grounds not
raised in his state direct appeal. Doc. 1 at 4 (noting that
he filed his habeas petition on October 31, 2012, asserting
ineffective assistance by his four pretrial and trial
attorneys, malicious prosecution, discovery violations, and
violations of the Due Process and Confrontation Clauses). At
some unspecified time, he amended that petition to assert
ineffective assistance and “conspiracy” by his
appellate counsel. Id.
habeas petition, initially filed in the Chatham County
Superior Court, was ultimately transferred to the Superior
Court of Washington County. Id. That Court conducted
an evidentiary hearing on his petition on March 31, 2016.
Id. at 5; Johnson v. Chisholm, CV14-446
(Wash. County Super. Ct.). Thus, over two years have passed
without a ruling on Johnson's claims.
concedes that his state habeas petition -- which raises the
same claims presented in the federal habeas petition filed in
this Court-- is still pending before the Washington
County Superior Court. Doc. 1 at 12. He further recognizes
that he has not exhausted any of his claims, for he has yet
to present them through one full round of state appellate
review. Id. at 5-7, 9, 10. But he can't do that,
he explains, because the state habeas court refuses to issue
a decision addressing his claims.
federal habeas corpus statute provides that the exhaustion
requirement does not apply where a petitioner establishes
“that there is either an absence of available state
corrective process or the existence of circumstances
rendering such process ineffective to protect the rights of
the prisoner.” 28 U.S.C. § 2254(b). It is well
settled in this Circuit that inordinate and unjustifiable
delay by a state court in reviewing a state prisoner's
claims excuses him from exhausting his state remedies.
“A federal habeas petitioner need not wait until his
state petitions for relief are exhausted, if the state court
has unreasonably or without explanation failed to address
petitions for relief.” Hollis v. Davis, 941
F.2d 1471, 1475 (11th Cir. 1991). In Hollis, an
Alabama prisoner had, over the course of several decades,
filed numerous pro se applications seeking relief
from his burglary conviction, including petitions for writs
of habeas corpus and mandamus. Id. at 1472-74. The
state had failed to act on any of his petitions or appoint
him counsel to overcome his “inscrutable”
handwriting. Id. at 1473. In addition, the state
admitted “the futility of further resort to its own
courts, ” thus effectively waiving the exhaustion
requirement. Id. at 1475.
two-year delay in this case is certainly not as egregious as
that presented in Hollis. But Hollis did
not suggest that a state prisoner must show decades of delay
before he can be relieved from the exhaustion requirement.
Indeed, Hollis cited binding Fifth Circuit authority
that exhaustion may be excused where the prisoner's
“state habeas petition has been completely dormant for
over one year, ” id. (citing Breazeale v.
Bradley, 582 F.2d 5, 6 (5th Cir. 1978), or where there
has been a fifteen-month delay in the processing of the
prisoner's direct appeal. Id. (citing
Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir. 1976)
(remanding for a determination of the justifiability of the
is a material difference between this case and
Hollis (and similar cases from this Circuit),
however. The federal habeas statute provides that a
petitioner has not “exhausted” his state remedies
“if he has the right under the law of the State to
raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). There was no
doubt in Hollis that the petitioner had pursued
every state post-conviction remedy “available” to
him. Johnson, on the other hand, has clearly failed to do so.
Jackson v. Walker, 206 Fed.Appx. 967 (11th Cir. Nov.
26, 2006), just as in this case, a Georgia state prisoner
sought federal habeas relief after a state habeas court
afforded him an evidentiary hearing but “allowed over
two years to elapse without issuing a ruling.”
Id. at 968. The Eleventh Circuit saw no need to
remand the case for a determination of the reasonableness of
the delay, for it recognized that the petitioner had an
available state procedure that he was required by state law
to utilize -- a petition for a writ of mandamus pursuant to
O.C.G.A. § 9-6-20. Id. at 969. That statute
requires the faithful performance of all official duties,
including judicial duties, and authorizes the issuance of a
writ of mandamus “to compel a due performance” of
those duties. Id. “[T]he Georgia Supreme Court
has considered mandamus proper to compel a superior court
judge to schedule a hearing to consider a prisoner's
state habeas motion.” Id. The Eleventh Circuit
reasoned that mandamus is also the appropriate remedy for
compelling a superior court to issue a ruling in a habeas
argues that, because the state habeas court has unreasonably
declined to rule on his habeas petition, he has “no
other recourse” but to seek relief under 28 U.S.C.
§ 2254. In this he is mistaken. Because it
“plainly appears from the petition . . . that the
petitioner” has an “available” avenue of
relief that he has yet to pursue and thus that his claims are
not yet exhausted, the Court “must dismiss the petition
and direct the clerk to notify the petitioner.” Rule 4,
Rules Governing Section 2254 Cases; see also Smalls v.
St. Lawrence, 2012 WL 1119766 at *1 (S.D. Ga. Feb. 27,
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. §