United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Jon Oliver (“Oliver”), who was formerly housed at
Central State Prison in Macon, Georgia, filed a 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus in the Middle
District of Georgia. Doc. 1. The Middle District of Georgia
transferred Oliver's Petition to this Court, as Oliver
challenges his revocation conviction obtained from the
Superior Court of Wayne County, Georgia. Doc. 3. Respondents
filed an Answer and Motions to Dismiss. Docs. 16, 17, 19. For
the reasons which follow, I RECOMMEND the
Court GRANT Respondent Gregory Dozier's
unopposed Motion to Dismiss and DISMISS
Dozier as a named Respondent, GRANT
Respondent Tommy Bowden's Motion to Dismiss, and
DENY as moot Oliver's Petition. I also
RECOMMEND the Court DIRECT
the Clerk of Court to CLOSE this case and
enter the appropriate judgment of dismissal and
DENY Oliver in forma pauperis
status on appeal and a Certificate of
filed his Petition in the Middle District of Georgia on
August 30, 2018, and that court subsequently transferred
Oliver's Petition to this Court. Docs. 1, 3. In his
Petition, Oliver asserts he has not received any response
from the Wayne County Superior Court on his previously-filed
motions and petitions. Doc. 1 at 5. Specifically, Oliver
states he filed a motion for sentence modification with the
Wayne County court and had not received a response at the
time he filed his Petition. Id. at 7. Oliver
contends he and his appointed counsel asked the trial judge
to order that Oliver receive credit for time served prior to
the imposition of sentence in his revocation proceedings, but
the judge gave no ruling on that request. Id. Oliver
maintains he is unsure whether he had any petitions or
appeals pending at the time he filed his § 2254
Petition, as he has not received any responses to the several
motions he filed in the Wayne County Superior Court.
Id. at 12. Oliver asks this Court to credit him with
time served from October 14, 2016 until he was sentenced on
August 8, 2017. Id. at 15.
the Court granted Oliver in forma pauperis status,
this Court directed service of Oliver's Petition upon
Respondents on January 11, 2019. Doc. 11. Respondent Bowden
filed a Motion to Dismiss, claiming the Court should dismiss
as moot Oliver's Petition because he is no longer in the
custody of the Georgia Department of Corrections based on his
release. Doc. 17 at 1-2; Doc. 17-1 at 2-3. Respondent Bowden
also asserts Oliver's Petition is due to be dismissed for
failure to exhaust his state remedies and failure to state a
claim. Doc. 17 at 2; Doc. 17-1 at 2, 4-8. Respondent Dozier
moved to dismiss as an improperly named Respondent. Doc. 19.
The Court directed Oliver to respond to the Motions to
Dismiss on February 28, 2019, docs. 20, 21, and those Orders
were not returned to this Court as undeliverable or as
otherwise failing to reach Oliver. However, Oliver did not
respond to either Motion to Dismiss.
Whether Oliver'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 there is nothing left for this Court to remedy
because Oliver was released from custody on February 18,
2019, rendering his Petition moot. Doc. 17-1 at 3-4. As
Oliver only requests that he be credited with time served and
he has been released from the Department of Corrections'
custody,  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 Bowden's unopposed Motion to Dismiss,
DISMISS Dozier as a named Respondent,
GRANT Respondent Dozier's unopposed
Motion to Dismiss, and DENY as moot
Oliver's Petition for Writ of Habeas Corpus.
Leave to Appeal in Forma Pauperis and Certificate of
Court should also deny Oliver leave to appeal in forma
pauperis and a Certificate of Appealability. Though
Oliver 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 Oliver's Petition and
Respondents' Motions 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