Pearce v. Chatman

Filing 11

OPINION and ORDER APPROVING and ADOPTING Magistrate Judge Walter E. Johnson's Final Report and Recommendation 10 ; GRANTING Respondent's Motion to Dismiss 6 ; Pearce's Petition for a Writ of Habeas Corpus 1 is DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. Signed by Judge William S. Duffey, Jr. on 5/12/2011. (tcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JAMES PEARCE,
Petitioner,
v.

1:11-cv-0128-WSD-WEJ

BRUCE CHATMAN,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Walter E. Johnson’s
Final Report and Recommendation (“R&R”) [10], recommending that Respondent
Bruce Chatman’s (“Respondent”) Motion to Dismiss [6] be granted, and that
Petitioner James Pearce’s (“Pearce” or “Petitioner”) Petition for Writ of Habeas
Corpus (“Petition”) [1] be dismissed without prejudice for lack of exhaustion. The
Magistrate Judge recommended also that a Certificate of Appealability (“COA”)
not be issued. Neither party has objected to the R&R.
I.

BACKGROUND1
On August 28, 2007, a Gwinnett County jury found Petitioner guilty of

aggravated sexual battery, incest, child molestation, and statutory rape, for which
1

The Court briefly summarizes the procedural history here. The background of
this case is more fully set forth in the R&R.

he was sentenced to thirty (30) years imprisonment and ten (10) years probation.2
(7-4 at 13, 25-26) On November 5, 2009, the Georgia Court of Appeals affirmed
Petitioner’s convictions. Pearce v. State, 686 S.E.2d 392 (Ga. Ct. App. 2009).
On January 29, 2010, Pearce filed a state habeas corpus petition in the
Superior Court of Mitchell County, Georgia.3 On September 13, 2010, the state
habeas court conducted an evidentiary hearing. (7-2 at 1-8) As of this date, the
state court has not entered a final order in Petitioner’s state habeas action.
On December 14, 2010, Pearce petitioned this Court for a writ of habeas
corpus pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254. Petitioner contends that: (1) the petite jury was
unconstitutionally selected because the court failed to strike a prospective juror
after learning that she had been a victim of child molestation; (2) the “prosecution
staged witnesses she knew were not qualified to testify as ‘experts,’ and then
forced the jury to accept these testimonies as if they were being presented by an
‘expert;’” (3) trial counsel provided ineffective assistance by allowing the
admission of hearsay evidence and unsolicited comments by witnesses Verna
Williams and Holly West; and (4) after his presumed acquittal, the trial court

2
3

State v. James Pearce, Case No. 05-B-4921-1.
Pearce v. Chatman, Civil Action No. 10-v-061.
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“force[d] the jury to re-deliberate under new charges . . . through an altered Allen
charge with a minimum amount of time in which to deliberate.” (1 at 5-6)
Respondent moves to dismiss the Petition for lack of exhaustion because
Pearce’s state habeas petition is still pending. (6-1 at 2-4) Petitioner did not reply
to Respondent’s motion. On April 21, 2011, the Magistrate Judge issued his R&R,
recommending that Respondent’s unopposed Motion to Dismiss be granted, and
that the Petition be dismissed without prejudice. The Magistrate Judge also
recommended that a COA not be issued. Neither party has objected to the R&R.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A
district judge “shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). This requires that the district judge “‘give fresh
consideration to those issues to which specific objection has been made by a
party.’” Jeffrey S. by Ernest S. v. State Board of Educ. of Ga., 896 F.2d 507, 512

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(11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2d Sess. (1976)).
With respect to those findings and recommendations to which a party has not
asserted objections, the Court must conduct a plain error review of the record.
United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S.
1050 (1984). Because neither party has objected to the R&R, the Court reviews
for plain error the Magistrate Judge’s recommendation that the Petition be
dismissed without prejudice for lack of exhaustion and a COA not be issued.
B.

Dismissal for Lack of Exhaustion

The AEDPA provides that a Court shall not grant an application for a writ of
habeas corpus unless:
(A) the applicant has exhausted the remedies available in the courts
of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). The Eleventh Circuit has consistently held that, in order to
exhaust state remedies, Georgia prisoners must seek a certificate of probable cause
from the Georgia Supreme Court on the denial of a state habeas petition. Pope v.
Rich, 358 F.3d 852, 853-54 (11th Cir. 2004) (per curiam). Principles of comity
would be violated by allowing a state prisoner to simultaneously pursue both his
appeal in state court and a habeas corpus petition in federal court. Horowitz v.

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Wainwright, 709 F.2d 1403 (11th Cir. 1983). “Generally, when a petitioner has
failed to exhaust state remedies, the district court should dismiss the petition
without prejudice to allow exhaustion.” Reedman v. Thomas, 305 F. App’x 544,
546 (11th Cir. 2008) (per curium) (citing Rose v. Lundy, 455 U.S. 509, 519-520
(1982)).
Respondent has moved to dismiss Pearce’s Petition for lack of exhaustion.
Since Petitioner failed to reply to Respondent’s motion, the Magistrate Judge
deemed the motion unopposed, and recommended that the Petition be dismissed
without prejudice. The Magistrate Judge found that Petitioner is currently
pursuing his state court remedies through a pending state habeas petition. (10 at 6)
The Magistrate Judge found further that Petitioner has not shown that existing
circumstances render his available state remedies ineffective to protect his rights.
(Id.) Finding no plain error in the Magistrate Judge’s findings of fact and
conclusions of law that Petitioner has failed to exhaust his state remedies, the
Court adopts the Magistrate Judge’s recommendation that Pearce’s Petition must
be dismissed without prejudice.
C.

Denial of a Certificate of Appealability

“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2).

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When a district court has denied a habeas petition on procedural grounds without
reaching the merits of the underlying constitutional claim, the petitioner must show
that (1) “jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” and that (2) “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. at 484 (2000). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing
the petition or that the petitioner should be allowed to proceed further.” Id.
The Magistrate Judge recommended that a COA not be issued, finding that
Petitioner cannot show that reasonable jurists could debate dismissal of the instant
Petition. (10 at 8) Finding no plain error in the Magistrate Judge’s findings of fact
and conclusions of law that the decisive procedural issue in this case, lack of
exhaustion, is not debatable, the Court adopts the Magistrate Judge’s
recommendation that a Certificate of Appealability is required to be denied.
III.

CONCLUSION
For the foregoing reasons,

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IT IS HEREBY ORDERED that Respondent’s Motion to Dismiss [6] is
GRANTED, and Pearce’s Petition for a Writ of Habeas Corpus [1] is
DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.

SO ORDERED this 12th day of May, 2011.

_________________________________________

WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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