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Humphrey v. Laughlin

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

January 9, 2020

JAMES F. HUMPHREY, Petitioner,
v.
VANCE LAUGHLIN; and TIMOTHY C. WARD, Respondents.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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 of Appealability.

         BACKGROUND

         Humphrey 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.

         Humphrey 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.

         Humphrey 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.

         On 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; https://scweb.gasupreme.org:8088/results one record.php?caseNumber=S18H0552, last accessed Jan. 9, 2020.

         DISCUSSION

         In his 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.

         Respondents 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] . . . .”[1] Doc. 12 at 1-2. Humphrey also discusses statute of limitations issues. Id. at 4-6.

         I. Whether Humphrey is Barred from Bringing his Petition

         Before 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 prior ...

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