HARDEN v. VAUGHN

Filing 38

ORDER ADOPTING 36 Report and Recommendations. Any grounds for relief involving state court criminal adjudications other than the Petitioner's probation revocation in Case No. 41479 are DISMISSED without prejudice, the remaining grounds conce rning the Petitioner's probation revocation in Case No. 41479 are DISMISSED without prejudice, and a certificate of appealability is DENIED and GRANTING 24 Motion to Sever. Remaining motions are DENIED AS MOOT [15, 16, 17, 18, 19, 21, 22, 24, 29, 33 and 34]. Ordered by Judge Marc Thomas Treadwell on 9/30/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY ANTHONY HARDEN,
Petitioner,
v.
KENNETH VAUGHN,
Respondent.

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CIVIL ACTION NO. 5:12-CV-218 (MTT)

ORDER
Before the Court is Magistrate Judge Charles H. Weigle’s Recommendation on
the Respondent’s motion to sever and dismiss. (Doc. 36). The Magistrate Judge
recommends severing and dismissing without prejudice any grounds for relief involving
state court criminal adjudications other than the Petitioner’s September 9, 2005 Baldwin
County probation revocation (Case No. 41479). Additionally, the Magistrate Judge
recommends dismissing the remaining grounds of the petition because 1) the Petitioner
is no longer “in custody” for purposes of the federal habeas statute, and 2) the Petitioner
has not identified any collateral consequences remaining from his revocation. Finally,
the Magistrate Judge recommends denying the Petitioner’s other pending motions as
moot and denying a certificate of appealability because the Petitioner has failed to make
a substantial showing of the denial of a constitutional right. (Docs. 15-19, 21, 22, 29,
33, 34). The Petitioner has objected to the Recommendation. (Doc. 37). Pursuant to
28 U.S.C. § 636(b)(1), the Court has thoroughly considered the Petitioner’s objections

and has made a de novo determination of the portions of the Recommendation to which
the Petitioner objects.
The Petitioner argues his petition is not moot because “there is a concrete
reason to believe the violation will recur,” making it “capable of repetition, yet evading
judicial review.” (Doc. 37 at 2-3).1 For this exception to the mootness doctrine to apply,
it must be shown “(1) there [is] a reasonable expectation or a demonstrated probability
that the same controversy will recur involving the same complaining party, and (2) the
challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration.” Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242-43 (11th Cir.
2002) (internal quotation marks omitted).
The Petitioner has not shown any reason to believe he will be subjected to the
same controversy again, and indeed, he acknowledges his probation in Case No. 41479
expired on May 13, 2009. (Doc. 14 at 14). The Petitioner has also not shown that
challenges to probation revocation proceedings are “in their nature too short to be fully
litigated.” United States v. Kissinger, 309 F.3d 179, 183 (3d Cir. 2002). Further, a
review of the record shows the challenged action was not too short to fully litigate. Even
though the Petitioner’s probation expired while his second petition2 in federal court
challenging the revocation was pending, the Superior Court of Baldwin County

1

 The Petitioner apparently concedes the only state court criminal adjudication he is properly challenging
in this petition is his probation revocation in Case No. 41479. (Doc. 37 at 1, 8). The Petitioner also
alleges there are remaining collateral consequences from his probation revocation. However, he never
asserts what these collateral consequences are.
2

 The Petitioner’s first federal habeas petition challenging the revocation was dismissed without prejudice
because he failed to exhaust all available remedies in state court prior to filing in federal court. Harden v.
Massey, 5:05-cv-377 (Docs. 4, 6). As discussed above, his second petition challenging the same
probation revocation was dismissed as moot. Harden v. Hunter 5:08-cv-443.

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considered the merits of the Petitioner’s claim, and the Georgia Supreme Court denied
a certificate of probable cause to appeal the denial of the petition. (Doc. 27-7 at 1-16;
Doc. 27-8). See Medberry v. Crosby, 135 F. App’x 333, 335 (11th Cir. 2005) (“[T]he
challenged action is not too short in duration to be fully litigated. Although [the
petitioner’s] placement in close management was completed by the time he reached
federal court, the Florida district and appellate courts considered the merits of his
claim.”).
The Court accepts and adopts the findings, conclusions, and recommendations
of the Magistrate Judge except to the extent it recommends dismissing the grounds for
relief relating to the Baldwin County probation revocation in Case No. 41479 with
prejudice rather than without prejudice. Otherwise, the Recommendation is adopted
and made the order of this Court. Further, the Petitioner has not made a substantial
showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2).
Therefore, any grounds for relief involving state court criminal adjudications other than
the Petitioner’s probation revocation in Case No. 41479 are DISMISSED without
prejudice, the remaining grounds concerning the Petitioner’s probation revocation in
Case No. 41479 are DISMISSED without prejudice, and a certificate of appealability is
DENIED.3
SO ORDERED, this the 30th day of September, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

3

 The Petitioner’s ten pending motions (Docs. 15-19, 21, 22, 29, 33, 34) are DENIED as moot.

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