United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
Alphonso Adams has filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254, challenging various defects in
his state criminal case. Doc. 1. He also seeks leave to file
his § 2254 petition in forma pauperis (IFP).
Doc. 2. Finding him indigent, the Court
GRANTS his IFP motion. Preliminary review
under Rule 4 of the Rules Governing Section 2254 Cases shows,
however, that his petition must be dismissed.
myriad cases are set forth somewhat incoherently. He
references a habeas case, SPCV18-01172-MO, but refers to a
“crack cocaine” violation of his parole,
complaining that while “out on bond” he has been
“placed on hold.” Doc. 1 at 1. However,
that habeas case (filed in October 2018) clearly cannot arise
from any sentence in State v. Adams, No.
SPCR19-00965 (Chatham Super. Ct., filed April 17, 2019)
(felony possession of cocaine and misdemeanor taillight
violation arising from February 8, 2019 arrest, with calendar
call set for June 10, 2019). Perhaps the October 2018 habeas
case refers to petitioner's ongoing driving under the
influence and failure to maintain lane misdemeanor case.
State v. Adams, No. STCR18-03036 (Chatham Super.
Ct.) (filed May 10, 2018 after March 9, 2018 arrest, with
case status noted as “open” and arraignment
scheduled for May 6, 2019)). Either way, Adams'
certificate of probable cause to appeal in his habeas case
(SPCV18-01172-MO) remains pending before the Georgia Supreme
Court. Adams v. Super. Ct. of Chatham Cty., S19H0829
(filed February 6, 2019, with argument calendared for June
2019). See also Adams v. Super. Ct. of Chatham Cty.,
S19D0758 (discretionary application to the Georgia Supreme
Court, stricken from docket February 27, 2019).
seeking § 2254 relief here, petitioners must
“fairly present” their claims to state courts to
give them a “full and fair opportunity to resolve
federal constitutional claims.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. §
2254(b)(1)(A) (habeas petitioners must “exhaust[ ] the
remedies available in the courts of the State” before
seeking federal relief); see also Reedman v. Thomas,
305 Fed.Appx. 544, 546 (11th Cir. 2008) (“Generally,
when a petitioner has failed to exhaust state remedies, the
district court should dismiss the petition without prejudice
to allow exhaustion.”). Adams, by his own admission,
has yet to do that. He must fully exhaust his
“right under the law of the State to raise, by
any available procedure, the question
presented.” 28 U.S.C. § 2254(c) (emphasis added).
That includes waiting for the Georgia Supreme Court's
final decision on his habeas appeal.
it “plainly appears from the petition . . . that the
petitioner is not entitled to relief” at this time, the
Court “must dismiss the petition and direct the clerk
to notify the petitioner.” Rule 4, Rules Governing
Section 2254 Cases. Accordingly, this petition should be
DISMISSED without prejudice for lack of
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
the Certificate of Appealability (COA) standards, which are
set forth in Brown v. United States, 2009 WL 307872
at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no
COA-worthy issues at this stage of the litigation, so no COA
should issue. 28 U.S.C. § 2253(c)(1); see Alexander
v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving
sua sponte denial of COA before movant filed a
notice of appeal). And, as there are no non- frivolous issues
to raise on appeal, an appeal would not be taken in good
faith. Thus, in forma pauperis status on appeal
should likewise be DENIED. 28 U.S.C. §
ORDERED AND REPORTED AND RECOMMENDED,
 A stay of this case is also not
warranted, as petitioner has made no showing of “good
cause” for his “failure to exhaust his claims
first in the state court.” Rhines v. Weber,
544 U.S. 269, 277 (2005). Dismissal without prejudice, of
course, means that once petitioner has his resolution he ...