United States District Court, S.D. Georgia, Statesboro Division
JAMES F. HUMPHREY, Petitioner,
VANCE LAUGHLIN; and TIMOTHY C. WARD, Respondents.
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.
James Humphrey (“Humphrey”), who is currently
incarcerated at Wheeler Correctional Facility in Alamo,
Georgia, filed a 28 U.S.C. § 2254 Petition for Writ of
Habeas Corpus, challenging his Toombs County, Georgia
conviction. Doc. 1. Respondents filed an Answer-Response and
a Motion to Dismiss. Docs. 7, 8. For the reasons which
follow, I RECOMMEND the Court
GRANT Respondents' Motion to Dismiss,
DISMISS Humphrey's Petition,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Humphrey
in forma pauperis status on appeal and a Certificate
was convicted on March 23, 2000 for malice murder and armed
robbery in the Toombs County Superior Court after entry of a
guilty plea. Doc. 1 at 1, 2. On this same date, the trial
court sentenced Humphrey to two concurrent life sentences.
Id. at 1.
filed a state petition for writ of habeas corpus in the
Telfair County Superior Court, raising as claims that his
plea was not entered into voluntarily, knowingly, or
intelligently, there was no factual basis for the charged
offenses, and his counsel provided ineffective assistance.
Id. at 2. The Telfair County court denied his
petition on February 15, 2007. Id. The Georgia
Supreme Court denied Humphrey's certificate of probable
cause to appeal on June 6, 2007. Id.
filed a § 2254 petition in this Court on June 29, 2007.
Pet., Humphrey v. Burnette, 6:07-cv-39 (S.D. Ga.
June 29, 2007), ECF No. 1. In that petition, Humphrey stated
he was not informed of the elements of the charged crimes.
Id. This Court denied Humphrey's petition as
being untimely filed. R. & R. and Order, Humphrey v.
Burnette, 6:07-cv-39 (S.D. Ga. Dec. 7 and 27, 2007), ECF
Nos. 17, 20.
April 11, 2017, Humphrey filed a “motion to vacate void
sentence” in the Wheeler County Superior Court. Doc. 1
at 3. In that motion, Humphrey raised the same issues as he
did in his Telfair County petition. Humphrey also claimed he
was not given the oath during his plea hearing, the
transcript did not have the court reporter's seal on it,
his plea was based on his illegally-obtained confession, he
was not informed of his right to appeal, and he was not
evaluated for competency. Id. The Wheeler County
court dismissed Humphrey's motion (which that court
considered to be a habeas petition) as untimely, and the
Georgia Supreme Court dismissed his appeal on September 24,
2018. Id. at 3-4; Doc. 1-1 at 3;
record.php?caseNumber=S18H0552, last accessed Jan. 9,
Petition, which was filed on November 21, 2018, Humphrey
asserts his sentence is void and his conviction is a nullity
because the court did not swear him in at the guilty plea
hearing and the transcript does not bear the court
reporter's name or company seal. Doc. 1 at 5. Humphrey
states his plea was not entered into knowingly, voluntarily,
or intelligently because there were no facts supporting the
charges and he was threatened with the death penalty if he
did not enter a plea. Id. at 7, 8. In addition,
Humphrey contends the trial court used a transcript an agent
transcribed, which should have been deemed inadmissible.
Id. at 10. Humphrey alleges he was not informed of
his right to appeal or to withdraw his plea, his attorney did
not have a competency evaluation done, he is being held in
violation of the Constitution, he was not informed of his
Miranda rights before he was interviewed, and his
attorney was generally ineffective. Id. at 12-14.
assert Humphrey's Petition should be dismissed as an
unauthorized successive petition under 28 U.S.C. §
2244(b). Doc. 8. In his Response, Humphry asserts he has not
filed a § 2254, but what he did file “in his state
petition was a mere nullity void conviction and sentence[sic]
. . . .” Doc. 12 at 1-2. Humphrey also discusses
statute of limitations issues. Id. at 4-6.
Whether Humphrey is Barred from Bringing his
a second or successive application is filed in a district
court, the applicant “shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A) (emphasis supplied). The “phrase
‘second or successive' . . . refers to a second or
successive petition challenging the same state-court
judgment.” Romero v. Ford, 735 Fed.Appx. 696,
696 (11th Cir. 2018). This “gatekeeping”
requirement transfers a second or successive application from
the district court to the court of appeals, pursuant to 28
U.S.C. §1631, as a motion for authorization to proceed
in district court. See Felker v. Turpin, 518 U.S.
651, 664 (1996). “If applicable, section 1631
authorizes a transfer that is in the interest of
justice.” Guenther v. Holt, 173 F.3d 1328,
1330-31 (11th Cir. 1999). However, a transfer may not be
authorized in certain instances, as set forth in 28 U.S.C.
§ 2244(b). This Section provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a