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Adams v. Wilcher

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

May 31, 2019

ALLEN ALPHONZO ADAMS, Petitioner,
v.
SHERIFF JOHN WILCHER; CHATHAM COUNTY SUPERIOR COURT; and CHATHAM COUNTY PAROLE OFFICE, Respondents.

          ORDER

          R. STAN BAKER, UNITED STATES DISTRICT JUDGE.

         After a 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”).

         Adams 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.

         Petitioner 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.

         Accordingly, 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.

         SO ...


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