United States District Court, M.D. Georgia, Macon Division
ORDER ADOPTING THE UNITED STATES MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT
Steven Troy Thomas filed an Objection [Doc. 25] following the
United States Magistrate Judge's Report and
Recommendation (“R&R”) [Doc. 24] to grant
Respondent Jose Morales' Motion to Dismiss [Doc. 14] his
petition for habeas corpus relief filed pursuant to 28 U.S.C.
§ 2254 [Doc. 4]. See [Doc. 24 at pp. 2-3]. In
light of his Objection, the Court is obligated to make a de
novo determination of those portions of the R&R to which
objection is made. 28 U.S.C. § 636(b)(1)(A).
R&R, the magistrate judge recommends that
Petitioner's habeas petition should be dismissed without
prejudice given his failure to exhaust the available remedies
in the courts of the State of Georgia. [Id. at p. 2
(citing 28 U.S.C. § 2254(b)(1)(A))]. After consideration
of the R&R and over Petitioner's Objection, the Court
ADOPTS the United States Magistrate
Judge's recommendation, GRANTS
Respondent's Motion to Dismiss, and
DISMISSES Petitioner's habeas corpus
relief sought via 28 U.S.C. § 2254 without
Objection, Petitioner argues that the magistrate judge is
“in collusion with Respondents and their counsel . . .
to wholly ignore the ostensible grounds of [his] writ of
[h]abeas [c]orpus . . . .” [Doc. 25 at p. 1]. These
grounds, according to Petitioner include, “actual
innocence, lack of proper jurisdiction, lack of venue
jurisdiction, and subordination of perjury.”
[Id.]. He claims that each of these grounds are
“well[-]settled exceptions to the procedural bar
erected by 28 U.S.C. § 2254(a)(1) and the [Antiterrorism
and Effective Death Penalty Act].” [Id.].
review of applicable law, the Court finds that the arguments
contained in his Objection simply just miss the mark.
“A claim of actual innocence is normally used not as a
freestanding basis for habeas relief, but rather as a reason
to excuse the procedural default of an independent
constitutional claim.” Mize v. Hall, 532 F.3d
1184, 1195 (11th Cir. 2008). Further, “[a] claim is
procedurally defaulted if it has not been exhausted in state
court and would now be barred under state procedural
rules.” Id. at 1190.
Petitioner's claims are not procedurally defaulted, they
are simply unexhausted. Only when it is clear that a habeas
petitioner would be barred from raising claims in state
court, will federal courts treat the unexhausted claims as
procedurally defaulted. Snowden v. Singletary, 135
F.3d 732, 736 (11th Cir. 1998) (“[W]hen it
is obvious that the unexhausted claims would be
procedurally barred in state court due to a state-law
procedural default, we can forego the needless
‘judicial ping-pong' and just treat those claims
now barred by state law as no basis for federal habeas
relief.”) (emphasis added). The Court should dismiss a
federal habeas petition for further exhaustion in state
court, unless the state court would be unable to review the
claims. Id. at 736-37 (“[W]here . . . the
unexhausted claims are procedurally barred from being
considered in [state] courts, it would serve no purpose to
dismiss the petition for further exhaustion because review of
those claims would be unavailable in state courts.”).
not obvious that Petitioner's claims, in this case, would
be barred or unavailable. Petitioner could file a motion for
an out-of-time appeal and he can certainly still file a state
habeas action. See O.C.G.A. § 5-6-38; see
also O.C.G.A. § 9-14-42 (four years to file a state
habeas action for felony, non-capital convictions). Actual
innocence is a possible (though unlikely) way to circumvent
habeas-related procedural defaults; it is not, however, an
excuse for failing to exhaust one's claims in a
state-court habeas proceeding, because “[t]he function
of federal habeas corpus is to redress constitutional errors,
not to relitigate state criminal cases.” Mize,
532 F.3d at 1195.
Petitioner's claims--including his actual innocence
claim--are premature, and the Court ADOPTS
the United States Magistrate Judge's Report and
Recommendation [Doc. 24] over Petitioner's Objection.
Consistent with that recommendation, the Court
GRANTS Respondent's Motion to Dismiss
[Doc. 14] and DISMISSES Petitioner's
habeas petition without prejudice giving him
the right to file, in state court, either an out-of-time
appeal or state habeas action in which he may raise his
claims and any actual innocence allegations.
 In other words, actual innocence is a
gateway to procedurally defaulted and time-barred claims; it
is not a doctrinal avenue that allows a petitioner to skip
over still-available state remedies.
 When, as here, “the district
court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying . . . claim[s],
” the district court will not issue a Certificate of
Appealability unless the prisoner can show, at least,
“that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 478, 483-84 (2000). Thus, in accordance with the
magistrate judge's recommendation, Petitioner is
accordingly DENIED a Certificate of Appealability.
See [Doc. 24 at p. 4].
 In light of the Court's ruling in
this Order, the Court TERMINATES Petitioner's Motion to
Strike Respondents' Opposition to File a Full and
Complete Record [Doc. 23] and Motion for Evidentiary Hearing
on Respondents' Exhaustion Contention ...