United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
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
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]
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. Doc. 13 at 1.
McElroy's Petition is Moot
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)).
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
Leave to Appeal in Forma Pauperis and Certificate of
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
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).
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
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