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Lynn v. Caldwell

United States District Court, S.D. Georgia, Statesboro Division

March 13, 2019

JAMES LYNN, Petitioner,
v.
WARDEN ANTOINE G. CALDWELL, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.[1] The Court DENIES as moot all pending Motions. Docs. 3, 5, 8.

         BACKGROUND

         Lynn 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).

         On 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, 8.[2] 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.

         Lynn 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.

         Lynn 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.

         DISCUSSION

         In his 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. Id.[3]

         I. Whether Lynn can Proceed Under § 2241

         Lynn's 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 be dismissed.

         “A 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.

         “Before 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).[4]

         Lynn 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 ...


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