United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EM'S UNITED STALES MAGISTRATE JUDGE.
Tracy Anthony Miller brings the above-styled petition for a
writ of habeas corpus against Edward Philbin, Warden of
Augusta State Medical Prison. Although Petitioner suggests
that his claims are brought pursuant to 28 U.S.C. §
2241, the petition is actually a request for relief pursuant
to 28 U.S.C. § 2254. As this is at least
Petitioner's sixth petition for relief under § 2254
and was filed without first obtaining the requisite
authorization from the Eleventh Circuit Court of Appeals, the
Court REPORTS and
RECOMMENDS Petitioner's motion to
supplement his § 2241 petition, motion for appointment
of counsel, motion for immediate release, and motion for
release be DENIED AS MOOT, (doc. nos. 3, 4,
6, 7), the petition be DISMISSED, and this
civil action be CLOSED.
not the first time Petitioner has requested habeas corpus
relief in federal court. He filed his first petition for
habeas corpus relief in 1996. Miller v. Sikes, CV
196-195 (S.D. Ga. Nov. 21, 1996) (“CV 196-195”).
That petition was denied by Order of the Honorable William T.
Moore, Jr., United States District Judge, on November 6,
1998. Id., doc. no. 111. Both Judge Moore and the
Eleventh Circuit Court of Appeals refused to issue a
Certificate of Appealability, id., doc. nos. 128,
141, thereby concluding Petitioner's habeas proceedings.
Undeterred, Petitioner continued to file papers in CV 196-195
until this Court entered an Order on January 9, 2003,
directing the Clerk of Court not to accept any further
filings from Petitioner bearing the Civil Action Number
196-195. Id., doc. no. 145. On July 16, 2018,
Petitioner filed a notice of appeal regarding the January 9,
2003 Order, id., doc. no. 146, which the Eleventh
Circuit dismissed for lack of jurisdiction on November 5,
2018, id., doc. no. 154.
also proceeded to file several other habeas petitions
challenging the same convictions, which were dismissed as
second or successive. See Miller v. Hall, CV
101-119, doc. no. 9, adopting doc. no. 3 (S.D. Ga.
Oct. 2, 2001) (“CV 101-119”); Miller v. All
Georgia Judges, CV 104-082, doc. no. 21,
adopting doc. no. 10 (S.D. Ga. July 21, 2004)
(“CV 104-082”); Miller v. Chase, CV
105-093, doc. no. 6, adopting doc. no. 1 (S.D. Ga.
Aug. 11, 2005) (“CV 105-093”); Miller v.
Walker, CV 109-131, doc. no. 7, adopting doc.
no. 3 (S.D. Ga. Dec. 28, 2009) (“CV 109-131”).
Notably, after the Honorable Dudley H. Bowen, Jr., United
States District Judge, dismissed the § 2254 petition
filed in CV 101-119 as second or successive, Petitioner filed
his habeas petitions in CV 104-082, CV 105-093, and CV
109-131 pursuant to § 2241 in an attempt to circumvent
the gatekeeping provision of the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L.
104-132, 110 Stat. 1214, that bans petitioners from filing
second or successive petitions for habeas corpus relief in
the district courts. See 28 U.S.C. §
2244(b)(3)(A). However, because Petitioner was actually
requesting relief pursuant to § 2254, rather than §
2241, the Court treated the petitions filed in CV 104-082, CV
105-083, and CV 109-131 as ones filed pursuant to §
2254, and as noted above, they were accordingly dismissed as
second or successive.
Petitioner is back before the Court, ostensibly seeking
relief pursuant to 28 U.S.C. § 2241. In keeping with
past practice, his petition, brief in support, and
supplemental filings constitute a rambling, virtually
incoherent “stream of consciousness” narrative
challenging the state court proceedings in Burke County that
led to his conviction for murder.
Nature of Petition
label placed on the petition by Petitioner does not prevent
the Court from considering the filing for what the substance
shows it to be, namely a request for relief pursuant to 28
U.S.C. § 2254. Indeed, the Court may look beyond the
title of a document to properly analyze its substance.
See, e.g., Spivey v. State Bd. of Pardons and
Paroles, 279 F.3d 1301, 1302 n.1 (11th Cir. 2002)
(per curiam) (looking past “artfully”
labeled filing to apply limit on second or successive habeas
petitions); Gilreath v. State Bd. of Pardons and
Paroles, 273 F.3d 932, 933 (11th Cir. 2001) (per
curiam) (“We look at the kind of relief Appellant
seeks from the federal courts and conclude that, however the
Appellant described it [motion for stay of execution], the
motion was for habeas corpus relief.”).
examination of the instant petition shows that it is a
request for the type of relief afforded by 28 U.S.C. §
2254. According to the relevant provisions of § 2254:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a). Here, there is no question that
Petitioner is “in custody pursuant to the judgment of a
State Court.” Nor is there any question that he is
attempting to attack the underlying basis of his convictions
that led to his current incarceration.
has done before, Petitioner is once again clearly attempting
to circumvent the gatekeeping provision of AEDPA that bans
petitioners from filing second or successive petitions for
habeas corpus relief in the district courts. See 28
U.S.C. § 2244(b)(3)(A). The Eleventh Circuit has
addressed this practice of state prisoners attempting to use
§ 2241 to circumvent the more restrictive requirements
of § 2254:
In summary, a state prisoner seeking post-conviction relief
from a federal court has but one remedy: an application for a
writ of habeas corpus. All applications for writs of habeas
corpus are governed by § 2241, which generally
authorizes federal courts to grant the writ-to both federal
and state prisoners. Most state prisoners' applications
for writs of habeas corpus are subject also to the additional
restrictions of § 2254. That is, if a state prisoner is
“in custody pursuant to the judgment of a State court,
” his petition is subject to § 2254. If, however,
a prisoner ...