United States District Court, M.D. Georgia, Macon Division
RON C. EVERETT, Petitioner,
STATE OF GEORGIA JUSTICE SYSTEM, Respondent.
ORDER DISMISSING HABEAS PETITION
E. SELF, III, JUDGE
filed a “Petition for Plain Error Review” [Doc.
7], which the United States Magistrate Judge construes as a
motion under Federal Rule of Criminal Procedure 52(b) and
recommends the Court dismiss as a successive petition for
habeas relief under 28 U.S.C. § 2254. See
generally [Doc. 10]. Petitioner filed an objection to
the Magistrate Judge's recommendation, and the Court
therefore reviews Petitioner's petition for plain error
review de novo. See 28 U.S.C. § 636(b)(1).
2007, Plaintiff was convicted in the Superior Court of
Chatham County, Georgia for committing robbery by force,
aggravated assault, kidnapping, and elder abuse. [Doc. 5, p.
3]; Everett v. State, 77 S.E.2d 394');">677 S.E.2d 394, 394
(Ga.Ct.App. 2009). In his petition for plain error review,
Petitioner complains that the superior court failed to apply
the reasonable doubt standard in his criminal proceedings.
[Doc. 7, p. 11');">p. 11]. He requests that the Court review this issue
for clear error under Federal Rule of Criminal Procedure
52(b), which allows a court to consider any “plain
error that affects substantial rights” even if the
error “was not brought to the court's
Magistrate Judge correctly determined that Petitioner's
argument constitutes a collateral attack on his state-court
conviction, which can only be maintained via a petition for
writ of habeas corpus under 28 U.S.C. § 2254. See
Heck v. Humphrey, 512 U.S. 477');">512 U.S. 477, 481 (1994)
(“[H]abeas corpus is the exclusive remedy for a state
prisoner who challenges the fact or duration of his
confinement . . . .”). But where a state prisoner has
already attempted to attack his state-court conviction in
federal district court, he must seek and obtain permission
from “the appropriate court of appeals” before
filing a second or successive habeas petition. 28 U.S.C.
§ 2244(b)(3)(A). This petition is Petitioner's sixth
federal attack, at least, on his 2007 conviction.
See [Doc. 5, pp. 3-4 (listing Petitioner's other
federal habeas petitions)]. Therefore, this petition is
successive, and there is no evidence that the Eleventh
Circuit Court of Appeals gave Petitioner permission to file
another habeas petition. Accordingly, the Magistrate Judge
appropriately recommended that this petition be dismissed.
Petitioner objects to the Magistrate Judge's
determination that “[b]ecause Mr. Everett was convicted
in a state court, the Federal Rules of Criminal Procedure are
not applicable.” [Doc. 10, p. 1]. But the Magistrate
Judge's determination was correct. The Federal Rules of
Criminal Procedure apply only to “criminal
proceedings” in the federal courts,  and Section 2254
actions are civil in nature. Fed.R.Civ.p. 1(a)(1); United
States v. Frady, 56 U.S. 152');">456 U.S. 152, 181, 183 (1982) (Brennan,
J., dissenting) (describing a Section 2254 action as “a
civil collateral review procedure for state prisoners”
and highlighting the fact that the Federal Rules of
Civil Procedure-as opposed to the Federal Rules of
Criminal Procedure-supplement Section 2254's
procedures when appropriate).
found no error in the Magistrate Judge's conclusions, the
Court ADOPTS the Report and Recommendation
[Doc. 10] over Petitioner's objections and MAKES
IT THE ORDER OF THE COURT. Accordingly,
Petitioner's Petition for Plain Error Review [Doc. 7] is
 This includes pending criminal actions
removed to federal court pursuant to 28 U.S.C. § 1455.
See Fed. ...