United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
James Lynn (“Lynn”), who is currently
incarcerated at Johnson State Prison in Wrightsville,
Georgia, filed a 28 U.S.C. § 2241 Petition for Writ of
Habeas Corpus challenging his conviction and sentence
obtained in the Superior Court of Toombs County, Georgia.
Docs. 1, 7. For the reasons which follow, I
RECOMMEND the Court DISMISS without
prejudice Lynn's Petition,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Lynn in
forma pauperis status on appeal and a Certificate of
Appealability. The Court DENIES as moot
all pending Motions. Docs. 3, 5, 8.
was indicted by the Toombs County grand jury on one count of
aggravated child molestation and on one count of child
molestation. Doc. 1 at 1. Following a jury trial, Lynn was
convicted on both counts. Id. Lynn was sentenced to
an aggregate of sixty years in confinement followed by life
on probation on September 24, 2008. Id. Lynn filed a
direct appeal after his motion for a new trial was denied,
and the Georgia Court of Appeals affirmed his convictions and
sentences on September 22, 2009. Lynn v. State, 684
S.E.2d 325 (Ga.Ct.App. 2009).
August 20, 2010, Lynn filed a state habeas corpus petition in
the Superior Court of Hancock County to challenge his Toombs
County convictions. He asserted as grounds for relief that
the trial court erred in: (1) failing to intervene on the
credibility of a State witness who admitted to coaching the
victim; (2) failing to be impartial on material evidence of a
similar transaction that Lynn was never given notice of and
because the court intervened, changing the witness's
testimony to be favorable to the State; (3) allowing the
victim's videotaped statement into evidence; (4)
restricting Lynn's cross-examination; and (5)
“fail[ing] to prove guilt beyond a reasonable doubt
and acquit.” Not. of Filing, Lynn v. Warden,
6:13-cv-14 (S.D. Ga. Apr. 29, 2013), ECF No. 7-1, pp. 5-6,
Lynn also raised two “amended grounds” for
relief: ineffective assistance of appellate counsel for
failing to raise the State's failure to prove venue on
appeal; and ineffective assistance of appellate counsel for
failing to argue that the trial court expressed its opinion
while charging the jury on venue. Id. at ECF No.
7-2, pp. 2. Following an evidentiary hearing, the state
habeas corpus court denied relief on all grounds by order
dated May 30, 2012. Id. at ECF No. 7-3. On January
22, 2013, the Georgia Supreme Court denied Lynn's
application for a certificate of probable cause to appeal the
denial of his state habeas corpus petition. Id. at
ECF No. 7-5.
then filed a 28 U.S.C. § 2254 petition in this Court on
February 11, 2013, and raised the following grounds based on
alleged violations of the Fifth and Fourteenth Amendments:
(1) the trial court error in failing to intervene on
“State's witness admitted coaching alleged
victim/failed to intervene on credibility”; (2) the
trial judge's failure to be impartial on material
evidence; (3) trial court error in allowing the victim's
videotaped interview into evidence; (4) the trial judge's
alleged error in restricting Lynn's cross-examination of
the State's witnesses; and (5) violations of the
Fourteenth and First amendments in that Lynn's
“first amendment rights were and are continued to be
denied (‘access to the court').” Pet.,
Lynn v. Johnson, 6:13-cv-14 (S.D. Ga. Feb. 11,
2013), ECF No. 1, pp. 5-13. The Magistrate Judge recommended
Lynn's petition be dismissed as containing procedurally
defaulted claims and non-habeas claims. R. & R., Lynn
v. Johnson, 6:13-cv-14 (S.D. Ga. May 20, 2013), ECF No.
9. The Court adopted this recommendation over Lynn's
objections. Order, Lynn v. Johnson, 6:13-cv-14 (S.D.
Ga. June 19, 2013), ECF No. 12. The Eleventh Circuit Court of
Appeals denied Lynn's motion for certificate of
appealability because he failed to make the requisite
showing. Mandate, Lynn v. Johnson, (S.D. Ga. Mar.
21, 2014), ECF No. 21.
filed his § 2241 Petition on December 3, 2018, and his
motion for leave to proceed in forma pauperis on
December 14, 2018. Docs. 1, 3. The Court deferred ruling on
Lynn's motion because Lynn's original submissions
were entirely handwritten. Doc. 6 at 1. After the Clerk of
Court mailed Lynn blank copies of its preferred forms, Lynn
filed another Petition and motion to proceed without
prepaying the requisite filing fee. Docs. 7, 8.
Petition, which was executed on November 15, 2018, Lynn
asserts the prosecution failed to disclose favorable evidence
relating to a State's witness to him. Doc. 1 at 3. Lynn
avers he was tried on the charge of aggravated child
molestation, in violation of his right against double
jeopardy. Id. Lynn also avers evidence uncovered
during an illegal search and seizure was used against him,
and he was not provided a “full and fair hearing”
on the merits of this Fourth Amendment claim.
Whether Lynn can Proceed Under § 2241
Petition should be dismissed because it is a second or
successive attack on his state-court conviction that can only
be made in compliance with 28 U.S.C. § 2254, and Lynn
has not satisfied the requirements of § 2254. Lynn's
attempt to label his filing as a § 2241 petition does
not help. His Petition is a barred by § 2254 and should
state prisoner seeking post-conviction relief from a federal
court has but one remedy: an application for a writ of habeas
corpus.” Medberry v. Crosby, 351 F.3d 1049,
1062 (11th Cir. 2003). Two different statutes govern the
single post-conviction remedy of the writ of habeas corpus,
28 U.S.C. §§ 2241 and 2254. “The difference
between the statutes lies in the breadth of the situations to
which they apply.” Thomas v. Crosby, 371 F.3d
782, 785 (11th Cir. 2004) (quoting Medberry, 351
F.3d at 1059). A writ of habeas corpus may issue to a
prisoner pursuant to § 2241 if the prisoner “is in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3).
Section 2254 “applies to a subset of those to
whom” Section 2241(c)(3) applies. Id. at 786.
This Section applies to “‘a person in custody
pursuant to the judgment of a State court' who
is ‘in custody in violation of the Constitution or law
or treaties of the United States.'” Id.
(quoting § 2254(a) (emphasis in original)). While
“the habeas corpus remedy is authorized by § 2241,
” it is “also subject to § 2254 and all of
its attendant restrictions.” Peoples v.
Chatman, 393 F.3d 1352, 1353 (11th Cir. 2004). “A
state prisoner cannot evade the procedural requirements of
§ 2254 by filing something purporting to be a §
2241 petition.” Thomas, 371 F.3d at 787.
a second or successive application permitted by this section
is filed in the district court, the applicant shall move in
the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). District courts “lack
jurisdiction to decide a second or successive petition filed
without [the court of appeals'] authorization.”
Insignares v. Sec'y, Fla. Dep't of Corr.,
755 F.3d 1273, 1278 (11th Cir. 2014). Consequently,
“[a] district court must dismiss a second or
successive petition, without awaiting any response from the
government, unless the court of appeals has given approval
for its filing.” Smalls v. St. Lawrence, 2012
WL 1119766 at * 1 (S.D. Ga. Feb. 27, 2012).
seeks to attack his state court conviction via his Petition,
and such an attack must be brought pursuant to § 2254. A
search for Lynn's previous filings reveals he has filed
at least one § 2254 petition in this Court attacking the
same state court conviction: Pet., Lynn v. Johnson,
6:13-cv-14 (S.D. Ga. Feb. 11, 2013), ECF No. 1. Because this
is a second or successive § 2254 petition and Lynn never
sought permission from the Eleventh Circuit Court of Appeals
before filing, “this Court is not at liberty to
consider it.” Sm ...