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Hill v. Green

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

November 7, 2019

CHRISTOPHER ALLEN LARKIN HILL, Petitioner,
v.
O. BRENT GREEN; CAMDEN COUNTY SUPERIOR COURT; LEE S. ASHMORE; JACQUELINE FORTIER; and GARNETT HARRISON, Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         Hill 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[1] 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.

         Mses. 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.

         In his 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.

         DISCUSSION

         I. Whether the Motion to Dismiss is Moot

         Article 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)).

         Hill 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.[2] 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.

         II. Leave to Appeal in Forma Pauperis and Certificate of Appealability

         The 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”).

         An 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).

         Additionally, 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 ...


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