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Oliver v. Dozier

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

April 25, 2019

JON ROBERT OLIVER, Petitioner,
v.
GREGORY C. DOZIER; and WARDEN TOMMY BOWDEN, Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner 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 Appealability.[1]

         BACKGROUND

         Oliver 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.

         After 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.

         DISCUSSION

         I. Whether Oliver'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 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, [2] 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.

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

         The 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 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 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 appeal ...


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