Bolden v. Gwinnett County Felony Probation Office

Filing 3

ORDER AND OPINION directing Clerk to recategorize the complaint as a petition for writ of habeas corpus under 28 USC 2254; granting 2 Affidavit and Authorization for withdrawal from Inmate Account for the purpose of dismissal only; dismissing without prejudice the 1 Complaint. Signed by Judge Thomas W. Thrash, Jr on 8/25/09. (dr)

FI LE D IN CHAMBE S THOMAS W. THRA S JR . U . S. D. C . Atia n t

FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

UNITED STATES DISTRICT COURT

By .)

JAMES N . HATTEN, CI rk

Deputy Clerl

TYJUAN B OLDEN, Inmate No. 99033351,
Plaintiff,
V.

PRISONER HABEAS CORPUS 28 U .S .C . § 2254 CIVIL ACTION NO . 1 :09-CV-2179-TWT

GWINNETT COUNTY FELONY PROBATION OFFICE and RONNALD BURNETT, Defendants . ORDER AND OPINION TyJuan Bolden filed a Civil Rights Complaint Pursuant to 42 U .S .C . § 1983
[I] and an Affidavit and Authorization for Withdrawal from Inmate Account [2] . For the purpose of dismissal only, Bolden is G RANT E D leave to proceed in forma pauperis . As explained below, Bolden's complaint is actually a

prematurely filed petition for writ of habeas corpus and must be dismissed .

In 2004, Bolden pled guilty to forgery . Bolden violated the terms of his
release, and an "Order for Sentence to Resume - Resume Date : 06-11-2009 / Expiration Date : 11 -24-2009" was entered . See http ://www .gwinnettcourts .com/#

casedetail/case :04%2db%2dQ0242%Zd4 (last visited August 18, 2009). Bolden
is now incarcerated in the Gwinnett County Detention Center .

AO 72A (Rev . 8/82)

Bolden alleges that : his "sentence[] ended January 29, 2009" [1 at 5 ] ; his
"probation i s over" [ I at 2] ; his probation officer "Ronnald Burrnett [sic] is trying

to give me more time to serve" [1 at 2] ; and his original sentence has been improperly extended [1 at 8] . Although he makes no specific request for relief,
it appears that Bolden seeks release from prison .

Challenges to "the fact or duration of confinement (that] seek[] immediate or speedier release" must be brought in habeas corpus proceedings, "even though
such a claim may come within the literal terms of § 1983 ." Heck v. Humphrey,

512 U.S . 477, 481 (1994) (citing Preiser v. Rodriguez, 411 U.S . 475 (1973)) .'
Indeed, Bolden recently filed "the papers for habeas corpus" in state court [ 1 at

5-6] : Bolden complains that he has not "heard from the clerk of court" [1 at 6] . Before Bolden may seek a writ of habeas corpus in federal court, he must first exhaust the remedies available in Georgia courts . 28 U .S .C . § § 2254(b)-{c} ; see also Fuller v . Florida, 473 F .2d 1383, 1384 (5th Cir . 1973) .2 Bolden plainly
has not yet done so . Bolden's federal habeas petition [1] is D ISM ISSE D as The Clerk is DIREC T E D torecategorizeBolden'scomplaintasapetitionaforwritofhabeascorpusunder28U

.S .C . § 2254 .

2 In Bonner v . City of Prichard, 66 1 F .2d 1206, 1209 (11 th Cir. 1981) (en banc}, the United States Court of Appeals for the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981 . 2
AO 72A ( Rev. Bl82)

premature .' Rule 4, Rules Governing Section 2254 Cases in the United States District Courts .

IT IS SO ORDERED , this Q,S day

of

12009,

THOMAS W . THRASH, JR . UNITED STATES DISTRICT JUDGE

This dismissal is without prejudice . For purposes of 28 U .S .C . § 2244(b), which limits "second or successive" habeas petitions, this case shall not be counted . See Castro v. United States, 540 U .S . 375, 383 (2003) (complaint dismissed after district court's sua sponte recharacterization as a § 2255 motion not counted as a "first" § 2255 motion if movant not "warned" and offered ann opportunity to withdraw his motion) and Martin v. Overton, 391 F .3d 710 (6th Cir . 2004) (extending Castro to § 2254 cases) .

3
AO 72A (Re v . 8182)