GREEN v. OLIVER et al

Filing 11

ORDER for Respondent to File Responsive Pleading re: 7 Recast Complaint/Petition filed by TYRONE B GREEN ; ORDER Directing Service ; REPORT AND RECOMM ENDATION; granting 2 Motion for Leave to Proceed in forma pauperis; denying as moot 5 Motion for Extension of Time to Amend ; denying 6 Motion to Appoint Counsel ; denying 8 Motion to Appoint Counsel ; finding as moot 9 Motion to Appoint Counsel. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 8/28/2024 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TYRONE B GREEN,

:
:
Petitioner,
:
:
VS.
:
:
TIMOTHY SALES,
:
:
Respondent. 1
:
________________________________ :

NO. 5:24-CV-00193-MTT-CHW

ORDER AND RECOMMENDATION
In accordance with the Court’s previous orders and instructions, pro se Petitioner
Tyrone B. Green has recast his initial pleading on the Court’s standard form for seeking
relief pursuant to 28 U.S.C. § 2254 (ECF No. 7). Petitioner’s motions for an extension of
time to file this document (ECF Nos. 5, 9) are thus DENIED as moot. The Recast Petition
challenges Petitioner’s 2022 conviction for possession of a firearm by a convicted felon in
the Superior Court of Tifton County, Georgia. Recast Pet. 1, ECF No. 7. The Recast
Petition also includes claims that officials at the Tift County Jail and the Macon State
Prison have failed to provide Petitioner with adequate treatment for a condition that causes

On his 28 U.S.C. § 2254 form, Petitioner named the Macon State Prison as the
Respondent. Rule 2 of the Rules Governing Section 2254 cases in the United States
District Courts provides that "if the petitioner is currently in custody under a state court
judgment, the petition must name as respondent the state officer who has custody."
Petitioner is incarcerated in the Macon State Prison, and the warden of that facility is
Timothy Sales. Therefore, the Court has corrected the style of this case to show Timothy
Sales as the correct Respondent. The Clerk is DIRECTED to correct the Docket
accordingly.
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him to have repeated seizures. See, e.g., Recast Pet. 9-10, ECF No. 7. Petitioner has also
filed a motion requesting his immediate release from prison so that he may “get the right
medical care and treatment and to have [his] brain surgery done by the right doctor in the
free world,” among other things. Mot. Immediate Release 1, ECF No. 10.
As was previously explained to Petitioner, complaints about the conditions of his
confinement—to include complaints about the adequacy of his medical treatment—should
be brought in a separate action pursuant to 42 U.S.C. § 1983. Such claims arise under the
Eighth Amendment and are “not cognizable under the mutually exclusive remedy of §
2254.” Daker v. Warden, 805 F. App’x 648, 651 (11th Cir. 2020) (per curiam). It is
therefore RECOMMENDED that Petitioner’s motion for immediate release due to an
alleged lack of medical care (ECF No. 10) be DENIED. 2 Pursuant to 28 U.S.C. §
636(b)(1), the parties may serve and file written objections to these recommendations with
the Honorable Marc T. Treadwell, United States District Judge, WITHIN FOURTEEN
(14) DAYS after being served with a copy of this Recommendation. The parties may seek
an extension of time in which to file written objections, provided a request for an extension

Petitioner is also reminded that even if he chooses to file a separate § 1983 case raising
his medical treatment claims, release from prison is only available as a remedy in a § 1983
action in very limited circumstances. The Prison Litigation Reform Act provides that
courts may not enter a prisoner release order unless an order for less intrusive relief has
failed to remedy the alleged constitutional deprivation and the defendant has had a
reasonable amount of time to comply with that less intrusive order. 18 U.S.C. §
3626(a)(3)(A). In addition, a prisoner release order may only be entered by a three-judge
court and “only if the court finds by clear and convincing evidence that . . . crowding is the
primary cause of the violation of a Federal right” and “no other relief will remedy the
violation of the Federal right.” Id. § 3626(a)(3)(E).
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is filed prior to the deadline for filing written objections. Any objection is limited in
length to TWENTY (20) PAGES.

See M.D. Ga. L.R. 7.4.

Failure to object in

accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the
district judge’s order based on factual and legal conclusions to which no objection was
timely made. See 11th Cir. R. 3-1.
Petitioner also moves for the appointment of counsel in this action. Generally,
there is no right to legal representation in a federal habeas corpus proceeding. See, e.g.,
Wright v. West, 505 U.S. 277, 293 (1992). The Rules governing habeas cases provide that
appointment of counsel is proper if an evidentiary hearing is needed, if counsel is necessary
for effective discovery, or “if the interest of justice so requires.” Jones v. Thompson, No.
CV410-039, 2010 WL 3909966, at *2 (S.D. Ga. Oct. 5, 2010) (citing Rules 6(a) & 8(c) of
the Rules Governing § 2254 Cases). This Court is not yet able to determine whether
counsel needs to be appointed in this case. However, if it becomes apparent at some point
later in these proceedings that counsel should be appointed for Petitioner, the Court will
entertain a renewed motion for counsel. Until then, Petitioner’s motions (ECF Nos. 6, 8)
are DENIED.
Finally, Petitioner seeks leave to proceed in forma pauperis.

Based on his

submissions, the Court finds that Petitioner is presently unable to prepay the filing fee.
Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is thus GRANTED. It is
also now ORDERED that, within thirty (30) days of the date of this Order, Petitioner
amend his petition to include every unalleged possible constitutional error or deprivation
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entitling him to federal habeas corpus relief, failing which Petitioner will be presumed to
have deliberately waived his right to complain of any constitutional errors or deprivations
other than those set forth in his initial habeas petition. If amended, Petitioner will be
presumed to have deliberately waived his right to complain of any constitutional errors or
deprivations other than those set forth in his initial and amended habeas petitions.
It is further ORDERED that Respondent file an answer to the allegations of the
petition and any amendments within sixty (60) days after service of this Order and in
compliance with Rule 5 of the Rules Governing Section 2254 Cases. Either with the filing
of the answer or within fifteen (15) days after the answer is filed, Respondent shall move
for the petition to be dismissed or shall explain in writing why the petition cannot be
adjudicated by a motion to dismiss. Any and all exhibits and portions of the record that
Respondent relies upon must be filed contemporaneously with Respondent’s answer or
dispositive motion.
No discovery shall be commenced by either party without the express permission of
the Court. Unless and until Petitioner demonstrates to this Court that the state habeas
Court’s fact-finding procedure was not adequate to afford a full and fair evidentiary hearing
or that the state habeas court did not afford the opportunity for a full, fair, and adequate
hearing, this Court’s consideration of this habeas petition will be limited to an examination
of the evidence and other matters presented to the state trial, habeas, and appellate courts.
To reiterate, Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is
GRANTED; his motions for an extension of time to file a recast petition (ECF Nos. 5, 9)
are DENIED as moot; his motions for appointed counsel (ECF Nos. 6, 8) are DENIED;
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and it is RECOMMENDED that his motion for immediate release from prison (ECF No.
10) be DENIED.
A copy of the Petition and a copy of this Order shall be served upon Respondent by
the Clerk via U.S. Mail. A copy of this Order shall also be served by the Clerk by U.S.
mail upon Petitioner. Petitioner is advised that his failure to keep the Clerk of the Court
informed as to any change of address may result in the dismissal of this action.
SO ORDERED AND RECOMMENDED, this 28th day of August, 2024.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge

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