United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Baldwin State Prison in Hardwick, Georgia,
brings the above-styled action pursuant to 28 U.S.C. §
2254. For the reasons set forth below, the Court
REPORTS and RECOMMENDS this
case be DISMISSED without prejudice and this
civil action be CLOSED.
commenced this action on June 3, 2019, by filing his petition
and submitting a motion to proceed in forma pauperis
(“IFP”). (Doc. nos. 1, 2.) That same day, the
Court denied the IFP motion without prejudice because
Petitioner had not provided any of the required financial
documentation from the appropriate prison official and
instructed Petitioner to submit a complete IFP motion or pay
the $5.00 filing fee within twenty-one days. (Doc. no. 3.)
Petitioner did not respond.
The Petition Should Be Dismissed Because Petitioner Failed to
Exhaust State Remedies
procedural history of Petitioner's underlying case, as
well as the exact nature of Petitioner's claims for
federal habeas relief, are not entirely clear, but the Court
can discern the following. Petitioner states he pleaded
guilty to incest in the Superior Court of Columbia County,
Georgia, on December 11, 2015, and was sentenced to a
twenty-year term of imprisonment and ten years of probation.
(Doc. no. 1, p. 1.) Further, Petitioner asserts he filed a
motion to withdraw his guilty plea, or in the alternative, to
file an appeal on December 23, 2015. (Id. at 3.)
Petitioner has not been able to file a direct appeal.
(Id. at 14, 15.)
claims ineffective assistance of trial counsel in his federal
petition, asserting he was not properly informed of either
the consequences of his guilty plea or his appeal rights, and
he was threatened by counsel with a harsher sentence if he
did not plead guilty. (See generally doc. no. 1.) In
light of this alleged ineffective assistance, Petitioner
asserts his guilty plea was not knowingly and voluntarily
entered. (Id. at 6.) Petitioner does not indicate he
has pursued any state habeas corpus relief.
The Exhaustion Requirement
the Anti-Terrorism and Effective Death Penalty Act of 1996,
110 Stat. 1214, and in accordance with the traditional
exhaustion requirement, an application for a writ of habeas
corpus shall not be granted unless it appears that the
petitioner has exhausted the remedies available to him by any
state court procedure. See 28 U.S.C. §§
2254(b)(1)(A) & (c). “An applicant shall not be
deemed to have exhausted the remedies available in the courts
of the State . . . if he has the right under the law of the
State to raise, by any available procedure, the
question presented.” Id. § 2254(c)
(emphasis added). A state inmate is deemed to have exhausted
his state judicial remedies when he has given the state
courts, or they have otherwise had, a fair opportunity to
address the state inmate's federal claims. Castille
v. Peoples, 489 U.S. 346, 351 (1989). “In other
words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”
Turner v. Crosby, 339 F.3d 1247, 1281 (11th Cir.
2003) (citing O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999)).
state prisoner seeking federal habeas relief cannot raise a
federal constitutional claim in federal court unless he first
properly raised the issue in the state courts.”
Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir.
2003). The exhaustion requirement applies with equal force to
all constitutional claims. See Lucas v. Sec'y,
Dep't of Corr., 682 F.3d 1342, 1353-54 (11th Cir.
2012); see also Footman v. Singletary, 978 F.2d
1207, 1211 (11th Cir. 1992). “Ultimately, ‘to
exhaust state remedies fully[, ] the petitioner must make the
state court aware that the claims asserted present federal
constitutional issues.'” Preston v. Sec'y,
Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir.
2015) (citation omitted).
when a petitioner has failed to exhaust state remedies, the
district court should dismiss the petition without prejudice
to allow exhaustion.” Reedman v. Thomas, 305
Fed.Appx. 544, 546 (11th Cir. 2008) (per curiam)
(citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)).
However, the exhaustion doctrine does not require a
petitioner to seek collateral review in state courts of
issues raised on direct appeal. See Powell v. Allen,
602 F.3d 1263, 1269 (11th Cir. 2010) (per curiam);
Walker v. Zant, 693 F.2d 1087, 1088 (11th Cir.
1982). Moreover, in Georgia, a petitioner's
“failure to apply for a certificate of probable cause
to appeal the denial of his state habeas petition to the
Georgia Supreme Court means that [the petitioner] has failed
to exhaust all of his available state remedies.”
Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004).
Petitioner Failed to Exhaust State Remedies
does not allege that he has exhausted his state court
remedies. (See generally doc. no. 1.) He states he
has been unable to file a direct appeal, but there is no
indication Petitioner has filed a state habeas corpus
petition. (See id.) However, Georgia case law is
clear that, subject to various state procedural requirements,
the state habeas courts are available for Petitioner to raise
claims concerning an involuntary guilty plea and ineffective
assistance of counsel. See Henderson v. Hames, 697
S.E.2d 798, 801 (Ga. 2010); Davis v. State, 561
S.E.2d 119, 119-20 (Ga. 2002); Goodwin v. Knighten,
387 S.E.2d 887, 887 (Ga. 1990); see also O.C.G.A.