United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE
an inmate at Burke County Detention Center in Waynesboro,
Georgia, brings the above-styled action pursuant to 28 U.S.C.
§ 2254. For the reasons set forth below, the Court
REPORTS and RECOMMENDS
Petitioner's motion to proceed IFP be DENIED AS
MOOT, (doc. no. 3), this case be
DISMISSED without prejudice, and this civil
action be CLOSED.
states he was convicted on February 1, 2019, of disorderly
conduct in Burke County and received a sixty-day sentence.
(Doc. no. 1, pp. 1.) Petitioner states he did not seek
further review of his conviction by a higher court, file a
petition for certiorari in the United States Supreme Court,
and that this case is his “first appeal.”
(Id. at 5-12.) Petitioner signed the instant federal
petition on February 16, 2019, claiming: (1) he was denied
access to police body camera footage and to present such
evidence on his behalf; (2) an officer lied under oath at
trial by stating he told Petitioner to get in the truck six
times instead of three as Petitioner alleges; and (3) he was
denied access to present evidence on his behalf.
(Id. at 5-16.)
The Exhaustion Requirement
the Anti-Terrorism and Effective Death Penalty Act of 1996,
(“AEDPA”), and in accordance with the traditional
exhaustion requirement, an application for a writ of habeas
corpus shall not be granted unless it appears that the
petitioner has exhausted the remedies available to him by any
state court procedure. See 28 U.S.C. §§
2254(b)(1)(A) & (c). “An applicant shall not be
deemed to have exhausted the remedies available in the courts
of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the
question presented.” Id. § 2254(c)
(emphasis added). A state inmate is deemed to have exhausted
his state judicial remedies when he has given the state
courts, or they have otherwise had, a fair opportunity to
address the state inmate's federal claims. Castille
v. Peoples, 489 U.S. 346, 351 (1989). “In other
words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first
properly raised the issue in the state courts.”
Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir.
2003). The exhaustion requirement applies with equal force to
all constitutional claims. See Lucas v. Sec'y,
Dep't of Corr., 682 F.3d 1342, 1353-54 (11th Cir.
2012); see also Footman v. Singletary, 978 F.2d
1207, 1211 (11th Cir. 1992). “Ultimately, ‘to
exhaust state remedies fully[, ] the petitioner must make the
state court aware that the claims asserted present federal
constitutional issues.'” Preston v. Sec'y,
Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir.
2015) (citation omitted).
when a petitioner has failed to exhaust state remedies, the
district court should dismiss the petition without prejudice
to allow exhaustion.” Reedman v. Thomas, 305
Fed.Appx. 544, 546 (11th Cir. 2008) (citing Rose v.
Lundy, 455 U.S. 509, 519-20 (1982)). However, the
exhaustion doctrine does not require a petitioner to seek
collateral review in state courts of issues raised on direct
appeal. Walker v. Zant, 693 F.2d 1087, 1088 (11th
Cir. 1982). Moreover, in Georgia, a petitioner's
“failure to apply for a certificate of probable cause
to appeal the denial of his state habeas petition to the
Georgia Supreme Court means that [the petitioner] has failed
to exhaust all of his available state remedies.”
Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004).
petitioner files a “mixed” petition, including
both exhausted and unexhausted claims, a court has the option
of issuing a stay and holding the petition in abeyance to
allow the petitioner to return to the state court to exhaust
his remedies as to the unexhausted claims. Rhines v.
Weber, 544 U.S. 269, 275-77 (2005). However, the stay
and abeyance procedure should only be used in limited
circumstances when a court determines there was good cause
for the petitioner's failure to exhaust his claims first
in state court. Id. at 277. Petitioner has not
presented any exhausted claims in the present petition, and
therefore, the stay and abeyance procedure is inapplicable.
Petitioner Failed to Exhaust State Remedies
does not allege he has invoked any state court remedies. To
the contrary, as explained above, the federal petition does
not describe any efforts to pursue a direct appeal or state
habeas corpus relief (See doc. no. 1, pp. 2-16.)
Nothing in Petitioner's filing suggests he has been
prevented from asserting his current claims in a state court
proceeding. Because Petitioner has not exhausted available
state court remedies, his federal habeas corpus petition
should be dismissed without prejudice so that he can first
give the state courts an opportunity to address his claims.
reasons set forth above, the Court REPORTS
and RECOMMENDS Petitioner's motion to
proceed IFP be DENIED AS MOOT, (doc. no.
3.), the petition be DISMISSED ...