United States District Court, S.D. Georgia, Savannah Division
STAN BAKER, UNITED STATES DISTRICT JUDGE.
careful de novo review of the entire record in this case, the
Court concurs with the Magistrate Judge's April 30, 2019
Report and Recommendation, to which the Petitioner has filed
objections, (doc. 5). As explained in the Report and
Recommendation, Adams has yet to 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). Adams does not deny that he has not yet
exhausted his available state remedies. Instead, he contends
that the state court “denied his habeas corpus
petition, because [ ] his assign[ed] judge for his case was
deceased.” (Doc. 5 at 1-2.) To prove his point, he
attaches exhibits showing that he does not have a Georgia
Supreme Court case pending in case number S19D0758. That the
Court knew, and described the case as “stricken”
from the Supreme Court's docket. (See doc. 4 at
2.) Moreover, that information does not contradict Adams'
other certificate for probable cause to appeal,
which remains pending before the Supreme Court, Adams v.
Super. Ct. of Chatham Cty., S19H0829 (filed February 6,
2019, with argument calendared for June 2019), cited
in doc. 4 at 2. Put differently, his petition is
unexhausted and, until it is dismissed, this Court lacks
jurisdiction to consider it. Because nothing can overcome
this jurisdictional barrier, Adams motion to amend the
petition, (doc. 7), is DENIED. Nor is a stay
warranted to permit Adams to exhaust his state remedies.
See Rhines v. Weber, 544 U.S. 269, 277 (2005)
(requiring a showing of “good cause” for
petitioner's “failure to exhaust his claims first
in the state court”).
raises two other matters that demand attention. He requests a
temporary restraining order against Sheriff John Wilcher to
contest the lockdown, disciplinary, and legal mail procedures
at Chatham County Jail. (Doc. 5 at 9-10.) That, of course, is
the subject of another suit entirely, not a petition
for habeas corpus. Petitioner may file a claim under 42
U.S.C. § 1983 if he so chooses, but must do so on the
Court's form § 1983 Complaint and either pay his
filing fee or move to proceed in forma pauperis in
compliance with the Prison Litigation Reform Act, Pub. L. No.
104-134, 110 Stat. 1321 (PLRA), which requires all
prisoners - even those who are allowed to proceed IFP - to
pay the full filing fee of $350.00 in installments. 28 U.S.C.
§ 1915(b)(1). The entire filing fee must be paid
even if the suit is dismissed at the outset because
it is frivolous, malicious, fails to state a claim, or seeks
monetary damages against a defendant who is immune from such
relief. Whatever the merits of Adams' complaints with
Sheriff Wilcher, they cannot be considered in the context of
his habeas petition.
also filed a “notice” for appointment of counsel,
which the Court construes as a motion for appointment of
counsel at public expense. (Doc. 6.) There is, however, no
automatic constitutional right to counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S.
551, 555 (1987); United States v. Webb, 565 F.3d
789, 794 (11th Cir. 2009) (citing Barbour v. Haley,
471 F.3d 1222, 1227 (11th Cir. 2006)); Hooks v.
Wainwright, 775 F.2d 1433, 1438 (11th Cir. 1985). Under
18 U.S.C. § 3006A(a)(2)(B), the Court may
appoint counsel for an indigent litigant seeking relief under
28 U.S.C. § 2254, but such requests are discretionary
when “due process or the ‘interests of
justice'” so require. Hooks, 775 F.2d at
1438; Norris v. Wainwright, 588 F.2d 130, 133 (5th
Cir. 1979); see also 28 U.S.C. § 2254(h) and
Rule 8(c) of the Rules Governing Section 2254 Cases in the
United States District Courts (mandating appointment of
counsel pursuant to 18 U.S.C. § 3006A when an
evidentiary hearing is warranted). Moreover, appointment of
counsel is “a privilege that is justified only by
exceptional circumstances.” McCall v. Cook,
495 Fed.Appx. 29, 31 (11th Cir. 2012). This, clearly, is not
such a case. Petitioner's request for appointment of
counsel, (doc. 6), is DENIED.
the Court OVERRULES Petitioner's
Objections, ADOPTS the Report and
Recommendation, (doc. 4), as the opinion of the Court, and
DISMISSES without prejudice Petitioner's
Petition for Writ of Habeas Corpus, (doc. 1), for lack of
exhaustion of administrative remedies. The Court
DIRECTS the Clerk of Court to
CLOSE this case.