United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE
Christopher Hill (“Hill”) filed a 28 U.S.C.
§ 2254 Petition for Writ of Habeas Corpus. Doc. 1.
Jacqueline Fortier and Garnett Harrison filed a Motion to
Dismiss, and Hill filed a Response. Docs. 3, 4. For the
reasons which follow, I RECOMMEND the Court
DENY as moot Mses. Fortier and
Harrison's Motion to Dismiss and DIRECT
the Clerk of Court to terminate Fortier, Harrison, and Lee
Ashmore as named Respondents. In addition, I
RECOMMEND the Court DENY
Hill leave to appeal in forma pauperis and a
Certificate of Appealability as to this Motion to Dismiss.
filed this § 2254 Petition and states he is the
defendant in divorce and child custody proceedings in Camden
County Superior Court, case number 18V265. Doc. 1 at 2-3.
Although he has not yet been confined, Hill contends
Respondents have denied him a constitutional right to
a fair trial. Id. at 2. Specifically, Hill asserts
Respondents found him in “willful contempt for failure
to pay child support . . . .” Id. at 3. Hill
avers the child support amount “was assessed in fraud[,
]” he does not have the ability to pay this amount, and
Respondents' decision is “based upon no factual
representation of any evidence.” Id. In
addition, Hill contends Respondents have interfered with his
employment by scheduling hearings when he has been scheduled
for out-of-state work. Id. Further, Hill maintains
Respondents have not enforced the rules of discovery in
18V265, as the attorneys in that case had not exchanged
discovery as of the date of filing his Petition, yet
Respondents will not hear or address this issue. Id.
at 4. Finally, Hill contends his attorney, Lee Ashmore, has
rendered ineffective assistance of counsel by failing to file
motions on Hill's behalf and has not challenged
“fraudulent evidence” Mses. Fortier and Harrison
submitted. Id. at 5. As relief, Hill asks this Court
to order his immediate release from Respondents' future
custody, to issue a protective order to ensure Respondents do
not further harm him, to take original jurisdiction in 18V265
on constitutional grounds, and to order and enforce discovery
and “any other actions” this Court deems
necessary. Id. at 5-6.
Fortier and Harrison assert they, as lawyers, are not
Hill's “custodians” within the meaning of
§ 2254. Doc. 3 at 4. Ms. Fortier and Harrison contend
they are not state actors and cannot be liable for any
alleged violations of Hill's constitutional rights.
Id. at 4-5. Mses. Fortier and Harrison also contend
this Court cannot “seize jurisdiction” in a
pending state court divorce proceeding. Id. at 5.
Response, Hill states he never “sued” Mses.
Fortier and Harrison in his Petition and has not made any
claim for relief against these two attorneys. Doc. 4 at 2.
Hill repeats he has not sought relief from or made any claims
against any lawyers “because they are not
custodians.” Id. at 3.
Whether the Motion to Dismiss is Moot
III of the Constitution “extends the jurisdiction of
federal courts to only ‘Cases' and
‘Controversies.'” Strickland v.
Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This
“case-or-controversy restriction imposes” what is
“generally referred to as ‘justiciability'
limitations.” Id. There are “three
strands of justiciability doctrine-standing, ripeness, and
mootness-that go to the heart of the Article III case or
controversy requirement.” Harrell v. The Fla.
Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal
quotation marks and alterations omitted). Regarding the
mootness strand, the United States Supreme Court has made
clear that “a federal court has no authority ‘to
give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.'”
Church of Scientology of Cal. v. United States, 506
U.S. 9, 12 (1992) (internal citation omitted). Accordingly,
“[a]n issue is moot when it no longer presents a live
controversy with respect to which the court can give
meaningful relief.” Friends of Everglades v. S.
Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir.
2009) (internal quotation marks omitted). Questions of
justiciability are not answered “simply by looking to
the state of affairs at the time the suit was filed. Rather,
the Supreme Court has made clear that the controversy
‘must be extant at all stages of review, not merely at
the time the complaint is filed.'” Christian
Coal. of Fla., Inc. v. United States, 662 F.3d 1182,
1189-90 (11th Cir. 2011) (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)).
affirmatively states he did not name any lawyers as
Respondents and does not have any claim for relief against
any lawyers, doc. 1 at 2; doc. 4 at 2-3. Accordingly, the
Court cannot provide the requested relief as to Mses. Fortier
and Harrison. I RECOMMEND the Court
DENY as moot Mses. Fortier and
Harrison's Motion to Dismiss and
TERMINATE them, along with Lee Ashmore, as
named Respondents. It is unnecessary to address the remaining
grounds of the Motion to Dismiss.
Leave to Appeal in Forma Pauperis and Certificate of
Court should also deny Hill leave to appeal in forma
pauperis and deny him a Certificate of Appealability as
to the Motion to Dismiss. Though Hill has, of course, not yet
filed a notice of appeal, it would be appropriate to address
these issues in the Court's order of dismissal. Pursuant
to Rule 11 of the Rules Governing § 2254 Cases,
“the district court must issue or deny a
certificate of appealability when it issues a final order
adverse to the applicant.” (emphasis supplied); see
also Fed. R. App. P. 24(a)(3) (trial court may certify
that appeal of party proceeding in forma pauperis is not
taken in good faith “before or after the notice of
appeal is filed”).
appeal cannot be taken in forma pauperis if the
trial court certifies that the appeal is not taken in good
faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
Good faith in this context must be judged by an objective
standard. Busch v. County of Volusia, 189 F.R.D.
687, 691 (M.D. Fla. 1999). A party does not proceed in good
faith when he seeks to advance a frivolous claim or argument.
See Coppedge v. United States, 369 U.S. 438, 445
(1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in
forma pauperis action is frivolous and not brought in
good faith if it is “without arguable merit either in
law or fact.” Napier v. Preslicka, 314 F.3d
528, 531 (11th Cir. 2002); Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga.
Feb. 9, 2009).
under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken
from a final order in a habeas proceeding unless a
Certificate of Appealability is issued. A Certificate of
Appealability may issue only if the applicant makes a
substantial showing of a denial of a constitutional right.
The decision to issue a Certificate of Appealability requires
“an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). In order to obtain a
Certificate of Appealability, a petitioner must show
“that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Id. “Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that
the petitioner should be allowed to proceed ...