Wimberly v. STATE OF GEORGIA

Filing 7

ORDER finding as moot 5 Motion to Stay; finding as moot 5 Motion ; finding as moot 6 Motion. The petition is dismissed without prejudice. The Clerk's Office is directed to enclose with this Order copies of the state habeas corpus and in forma pauperis forms. Petitioner is also denied a COA. Ordered by Judge W. Louis Sands on 5/28/2013. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
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Petitioner,
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VS.
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STATE OF GEORGIA,
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Respondent.
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_____________________________________
HENRY JAMES WIMBERLY, JR.,

NO. 1:13-CV-69 (WLS)

ORDER

Petitioner HENRY JAMES WIMBERLY, JR., is presently confined at the Dougherty
County Jail, where he is being held without bond on charges of failing to appear.

He has filed a

document in this Court entitled “Petition for Reduction of Bond by Habeas Corpus in Federal
Court,” which the Clerk’s Office has docketed as a petition for writ of habeas corpus under 28
U.S.C. § 2254 (Doc. 1).

Petitioner has also filed a “Motion for Stay until the Criminal Issue in

State Court Has Been Resolved” (Doc. 5) and a “Motion for De Novo Review” (Doc. 6).
Petitioner’s filings are unclear at best, but he attaches an order in which Dougherty County
Superior Court Judge Willie E. Lockette dismissed Petitioner’s state habeas corpus petition
because he failed to use the standard forms of the Georgia courts.
It is well-settled that exhaustion of state court remedies is required before a habeas corpus
petitioner can proceed in federal court. See Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir.
2004) (explaining that “[a]mong the most fundamental common law requirements ... is that
petitioners must first exhaust their state court remedies”). A petitioner has not exhausted the
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available state court remedies “if he has the right under the law of the State to raise, by any
available procedure,” the claims he has presented in his federal habeas petition. 28 U.S.C. §
2254(c). Exhaustion is necessary under section 2241 as well as section 2254. Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 489-92 (1973).
The Eleventh Circuit Court of Appeals held as follows regarding what a petitioner must do
to exhaust a claim:
Exhaustion requires that “state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process.” That is, to properly exhaust a
claim, the petitioner must “fairly present[]” every issue raised in his federal petition
to the state’s highest court, either on direct appeal or on collateral review [i.e.,
pursuant to a state habeas corpus action, O.C.G.A. § 9-14-1(a)].
Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (citations omitted); see also O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
Although much of Petitioner’s filings are intelligible, it appears clear that he has not fully
exhausted his state court remedies. Pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, 1 the instant petition is therefore DISMISSED
WITHOUT PREJUDICE. Petitioner’s motions are DENIED AS MOOT. The Clerk’s Office
is DIRECTED to enclose with this Order copies of the state habeas corpus and in forma pauperis
forms.
Rule 11(a) of Rules Governing Section 2254 Cases in the United States District Courts, as
amended December 1, 2009, provides that “[t]he district court must issue or deny a certificate of
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Under Rule 4, this Court is required to conduct a preliminary review of habeas corpus petitions
and, if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court,” the Court must dismiss the petition. See McFarland v. Scott, 512
U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face”). Rule 4 applies to section
2241 cases by virtue of Rule 1(b) of the Rules Governing Section 2254 Cases.

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appealability [“COA”] when it enters a final order adverse to the applicant.” A COA may issue
only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This standard requires a petitioner to demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” See
Slack v. McDaniel, 529 U.S. 473, 478 (2000). The Court concludes that reasonable jurists could
not find that a dismissal of the instant action was debatable or wrong. Accordingly, it is hereby
ORDERED that Petitioner be DENIED a COA.
Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
SO ORDERED, this

28th

day of May, 2013.

_/s/ W. Louis Sands__________________________
W. LOUIS SANDS
UNITED STATES DISTRICT JUDGE

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