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McElroy v. Brown

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

March 20, 2019

MATTHEW LEE MCELROY, Petitioner,
v.
TAMALA BROWN, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner Matthew McElroy (“McElroy”), who was formerly housed at Montgomery State Prison in Mt. Vernon, Georgia, filed a 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus. Doc. 1. Respondent filed an Answer-Response and a Motion to Dismiss. Docs. 9, 10. For the reasons which follow, I RECOMMEND the Court GRANT Respondent's unopposed Motion to Dismiss, DENY as moot McElroy's Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY McElroy in forma pauperis status on appeal and a Certificate of Appealability.[1]

         BACKGROUND

         McElroy filed his Petition on June 28, 2018. Doc. 1. In his Petition, McElroy asserts he filed an application for habeas corpus relief in the Superior Court of Montgomery County on May 10, 2017, and he had not had an evidentiary hearing as of the date of his filing. Id. at 4. McElroy states this hearing was scheduled for June 27, 2017, but the court granted a motion to continue. Id. at 5. However, he stated that the Superior Court of Montgomery County had not rescheduled the evidentiary hearing as of June 20, 2018, and he could not “get the state court to hear [his] case.” Id.

         After the Court granted McElroy in forma pauperis status, this Court directed service of McElroy's Petition upon Respondent on September 13, 2018. Doc. 5. Respondent filed a Motion to Dismiss, claiming the Court should dismiss as moot McElroy's Petition because he fails to state a claim for federal habeas relief, or alternatively, McElroy has received his requested relief, rendering his Petition moot. Doc. 10. The Court directed McElroy to respond to the Motion to Dismiss on November 20, 2018, doc. 11, and that Order was returned to this Court as undeliverable with a notation McElroy had been released.[2] Doc. 13 at 1.

         DISCUSSION I.

         Whether McElroy's Petition is Moot

         Article III of the Constitution “extends the jurisdiction of federal courts to only ‘Cases' and ‘Controversies.'” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This “case-or-controversy restriction imposes” what is “generally referred to as ‘justiciability' limitations.” Id. There are “three strands of justiciability doctrine-standing, ripeness, and mootness-that go to the heart of the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). Regarding the mootness strand, the United States Supreme Court has made clear that “a federal court has no authority ‘to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted). Accordingly, “[a]n issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). Questions of justiciability are not answered “simply by looking to the state of affairs at the time the suit was filed. Rather, the Supreme Court has made clear that the controversy ‘must be extant at all stages of review, not merely at the time the complaint is filed.'” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189-90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

         Respondent asserts the Montgomery County court rescheduled McElroy's evidentiary hearing on November 9, 2018, to be held on January 9, 2019. Doc. 10 at 2; Doc. 12-2. As McElroy only requests that the state court “hear” his case and reschedule his evidentiary hearing, there is no longer a “live controversy” over which the Court can give meaningful relief. Friends of Everglades, 570 F.3d at 1216. Accordingly, the Court should GRANT Respondent's unopposed Motion to Dismiss and DENY as moot McElroy's Petition for Writ of Habeas Corpus.

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

          The Court should also deny McElroy leave to appeal in forma pauperis and a Certificate of Appealability. Though McElroy has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the district court must issue or deny a certificate of appealability when it issues a final order adverse to the applicant.” (emphasis supplied); see also Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is filed”).

         An appeal cannot be taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous and not brought in good faith if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).

         Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order in a habeas proceeding unless a Certificate of Appealability is issued. A Certificate of Appealability may issue only if the applicant makes a substantial showing of a denial of a constitutional right. The decision to issue a Certificate of Appealability requires “an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In order to obtain a Certificate of Appealability, a petitioner must show “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196, 1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.

         Based on the above analysis of McElroy's Petition and Respondent's Motion to Dismiss and applying the Certificate of Appealability standards set forth above, there are no discernable issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability. Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal ...


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