HARRIS v. MEDLIN

Filing 24

ORDER granting 8 Motion to Dismiss; adopting 22 Report and Recommendations. The Petition is dismissed without prejudice.Ordered by U.S. District Judge W. Louis Sands on 12/2/2013 (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
KELVIN HARRIS,
Petitioner,
v.
COMMISSIONER BRIAN OWENS,
Respondent.

:
:
:
:
:
:
:
:
:
:

CASE No.: 1:13-CV-17 (WLS)

ORDER
Before the Court is a Recommendation from United States Magistrate Judge
Thomas Q. Langstaff, filed October 29, 2013. (Doc. 22.) Judge Langstaff recommends
that Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be
dismissed for failure to exhaust state remedies. (Id. at 4.) Per Judge Langstaff, though
Petitioner’s September 17, 1999 Motion for New Trial has not yet been ruled on, the
lengthy delay has been caused in some part by Petitioner; Petitioner has failed to file a
state habeas petition regarding the delay or his grounds for relief; and it appears the
state court is moving toward a disposition of the state case. (Id.) Thus, Judge Langstaff
concludes that Petitioner has failed to discharge his burden to establish that the delays
in the state court system excuse or waive the exhaustion requirement. (Id.)
On November 14, 2013,1 Petitioner filed fifteen (15) objections to Judge
Langstaff’s Recommendation. Without going through each one (as many are not

The deadline for filing written objections was technically November 12, 2013. The certificate of service
attached to Petitioner’s objections, however, is dated November 7, 2013. Thus, pointing to the certificate
of service that bears Petitioner’s signature, out of an abundance of caution, the Court will deem
Petitioner’s objections as timely submitted. United States v. Miller, 420 F. App’x 912, 913 n.3 (11th Cir.
2001) (“Under the ‘prison mailbox rule,’ a pro se prisoner's court filing is deemed filed on the date it is
delivered to prison authorities for mailing. [Therefore, a]bsent evidence to the contrary, there is a
1

1

specifically relevant to the exhaustion issues), the Court notes that Petitioner argues, in
direct response to Judge Langstaff’s conclusions, that 1) he has not signed off on a direct
appeal because he does not want to pursue a “piecemeal” appeal and 2) this Court
should look to the holding in Walker v. Roberts, No. 5:05-cv-222 (CAR), slip opinion
(M.D. Ga. Apr. 28, 2006), to conclude that his (Petitioner’s) failure to exhaust state
remedies should be excused in this case. The Court will address these objections.
Petitioner relies heavily on Walker for the proposition that he should be excused
from the requirement that he exhaust state remedies before pursuing federal habeas
relief. Walker is, however, distinguishable from the case at bar. In Walker, the
petitioner availed himself to state remedies prior to the filing of his federal habeas
petition, filing both a state habeas petition and a writ of mandamus to obtain a hearing
on his motion for new trial. Walker also appealed the denial of his state habeas petition.
Petitioner Harris has taken no such steps at the state level to challenge the delay on his
motion for new trial, thereby providing the Court with no current grounds for excusing
the exhaustion requirement.2 See, e.g., Roberts v. Morales, No. 1:10-cv-143, 2011 WL
5057053, at *1 (S.D. Ga. Sept. 27, 2011) (refusing to excuse exhaustion requirement
where petitioner “has still not given the state courts a ‘full opportunity’ to address his
grievances” via a state habeas petition or writ of mandamus challenging the delay in the
resolution of his motion for a new trial). Additionally, though it is possible that the state
habeas court may dismiss Petitioner’s habeas petition as premature, as was done in
Walker, this is still not a reason for the Court to consider Petitioner’s instant petition
presumption that a prisoner delivered his pleadings to prison officials on ‘the day he signed it.’”)
(additional citations omitted).
2 When the exhaustion requirement has been excused by courts in this state, the petitioner in question
had previously availed himself to state remedies. See Sloan v. Chapman, No. 1:10-cv-96, 2011 WL 816789,
at *1 (S.D. Ga. Jan. 31, 2011); Cail v. Smith, No. 6:05-cv-41, slip op. at 2 (S.D. Ga. Dec. 6, 2006), adopted
by No. 6:05-cv-41, slip opinion (S.D. Ga. Jan. 3, 2007).

2

since “courts in this state have been willing to entertain a habeas petition, even when
the petitioner's conviction is not yet final, where the habeas petition raises issues
relating exclusively to the constitutional violations arising from appellate delay.” See id.
(citing Little v. Hopper, 236 Ga. 321 (1976)) (emphasis added). Simply put, Petitioner
must give the state court “one full opportunity” to address the constitutional issue
arising from the delay on his motion for a new trial. O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999).
Therefore, upon full review and consideration upon the record, the Court finds
that said Recommendation of Dismissal (Doc. 22) should be, and hereby is,
ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings
made and reasons stated therein together with the reasons stated and conclusions
reached herein. Accordingly, the instant Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE.
SO ORDERED, this 2nd day of December 2013.
/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

3