THOMAS v. NELSON

Filing 6

ORDER denying 2 MOTION for Leave to Proceed in forma pauperis filed by THEODORE LAWRENCE THOMAS, directing Petitioner to refile 1 Petition for Writ of Habeas Corpus on the proper section 2254 form provided by the Clerk and to pay the $5 filing fee within twenty-one (21) days of the date of this Order. Ordered by US Magistrate Judge STEPHEN HYLES on 3-19-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
THEODORE LAWRENCE THOMAS, :
:
Petitioner.
:
:
VS.
:
:
Warden NELSON,
:
:
Respondent.
:
_________________________________:

NO. 5:15-CV-89-MTT-MSH

ORDER
Pro se Petitioner Theodore Lawrence Thomas, an inmate at the Clayton County
Prison, commenced this action by filing in the Northern District of Georgia a state habeas
corpus form designated for the “Superior Court of Bibb County.”

(ECF No. 1.)

Petitioner challenges the revocation of his probation in Bibb County, Georgia. The
Northern District construed Petitioner’s filing as a 28 U.S.C. § 2254 petition. Because the
revocation occurred in the Middle District, the Northern District transferred the action to
this Court. (ECF No. 3.) Petitioner has also filed a motion for leave to proceed in forma
pauperis (“IFP”). (ECF No. 2.)
It is unclear whether Petitioner wishes to file a state habeas action in Bibb County or
a Federal habeas action under section 2254. If Petitioner wishes to proceed in this Court,
he must present his claims on the Court’s standard 28 U.S.C. § 2254 habeas corpus form.
Additionally, Petitioner’s inmate account attached to his IFP motion shows that Petitioner
received $250.00 during the six months before he filed this action. The filing fee required
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in a section 2254 case is only $5.00. Petitioner’s submissions indicate that he should be
able to pay this amount. His motion to proceed IFP is accordingly DENIED.
Petitioner is also advised that his petition is subject to the exhaustion doctrine. See
28 U.S.C. § 2254(b)(1). Petitioner is thus required to exhaust all available state remedies
before he may go forward with this action 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”). To
exhaust state remedies, a petitioner must 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). It appears from Petitioner’s filing on the state habeas form that he has
yet to exhaust his state remedies. If so, Petitioner should notify the Court, and this action
will be dismissed without prejudice to allow for such exhaustion.
Petitioner shall have TWENTY-ONE (21) DAYS from the date of this Order to:
(1) complete the section 2254 form and return it to the Clerk of this Court; and (2) pay the
$5.00 filing fee. If Petitioner fails to submit the form and filing fee within said time, the
Court will assume that he wishes to pursue a state habeas action and will dismiss his action
in this Court.
The Clerk of Court is DIRECTED to forward this Court’s section 2254 form to
Petitioner.

All documents submitted in this case must show the case number

5:15-cv-89-MTT-MSH.

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SO ORDERED, this 19th day of March, 2015.

/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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