MATHIS v. TISDALE
ORDER ADOPTING 10 Report and Recommendation and GRANTING 10 Motion to Dismiss. The Petitioner's Section 2254 petition is DISMISSED. Additionally, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Accordingly, any motion to proceed in forma pauperis on appeal is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/19/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CIVIL ACTION NO. 5:16-cv-59 (MTT)
United States Magistrate Judge Charles H. Weigle recommends granting the
Respondent’s Motion to Dismiss (Doc. 10) and dismissing the Petitioner’s Section 2254
petition because the grounds are unexhausted. (Doc. 15). The Petitioner has objected
to the Recommendation. (Doc. 16). Pursuant to 28 U.S.C. § 636(b)(1), the Court has
considered the Petitioner’s objection and has made a de novo determination of the
portions of the Recommendation to which the Petitioner objects.
In his objection, the Petitioner says he would like to pursue his state habeas
action and his state appeal through the federal court. (Doc. 16). As the Magistrate
Judge explained, this Court cannot hear the Petitioner’s habeas petition because he has
not shown that he is being prevented from filing his state habeas petition in state court.
(Doc. 15 at 3) Additionally, to the extent the Petitioner is attempting to directly appeal
his conviction in this Court, this Court has no jurisdiction to hear a direct appeal of a
The Court has reviewed the Recommendation and accepts the findings,
conclusions, and recommendations of the Magistrate Judge. The Recommendation is
ADOPTED and made the order of this Court. Accordingly, the Respondent’s Motion to
Dismiss is GRANTED (Doc. 10), and the Petitioner’s Section 2254 petition is
DISMISSED. Additionally, because there are no non-frivolous issues to raise on
appeal, an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
Accordingly, any motion to proceed in forma pauperis on appeal is DENIED.
SO ORDERED, this 19th day of August, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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