Morris v. Carter
Filing
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OPINION AND ORDER ADOPTING the 3 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE and that a Certificate of Appealablility is DENIED. IT IS FURTHER ORDERED that Petitioner's Motions for Leave to File Amended Petitions 8 , 11 are DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 9/27/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ISSAC MORRIS,
Petitioner,
v.
1:13-cv-0899-WSD
WARDEN ALLEN CARTER,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Russell G. Vineyard’s
Final Report and Recommendation (“R&R) [3] and on Petitioner Issac Morris’s
(“Petitioner”) Motions for Leave to File an Amended Petition [8], [11].
I.
BACKGROUND
On March 20, 2013, Petitioner filed a 28 U.S.C § 2254 habeas petition
challenging his April 23, 2008, conviction for involuntary manslaughter in the
Superior Court of DeKalb County. On April 18, 2013, the Magistrate Judge
granted Petitioner’s motion to proceed in forma pauperis, but recommended that
the petition for habeas relief be dismissed without prejudice because Petitioner did
not exhaust his state court remedies. On May 2, 2013, Petitioner filed objections to
the Magistrate Judge’s R&R and on May 31, 2013, Petitioner moved for leave to
file an amended petition.
II.
DISCUSSION
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); Fed. R. Crim. P. 59;
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). 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. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)
(internal citations omitted). 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).
In light of Petitioner’s objections, the Court conducts a de novo review of
Petitioner’s request for habeas relief under Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts (“Rule 4”).
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A.
Legal Standards
Under Rule 4, “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition.” A district court may not grant a habeas relief unless (1)
the petitioner “has exhausted the remedies available in the courts of the State”; (2)
“there is an absence of available State corrective process”; or (3) “circumstances
exist that render such process ineffective to protect the rights of the applicant.” A
petitioner “shall not be deemed to have exhausted” the available state court
remedies “if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c). Finally, A petitioner
“shall not be deemed to have exhausted” the available state court remedies “if he
has the right under the law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). To fully exhaust his state court
remedies, a state habeas corpus petitioner must seek a certificate of probable cause
from the Supreme Court of Georgia after the denial of a state habeas corpus
petition. Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (per curiam) (citing
O.C.G.A. § 9-14-52).
B.
Analysis
As noted by the Magistrate Judge, Petitioner’s 2008 conviction for
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involuntary manslaughter was affirmed by the Georgia Court of Appeals on June
17, 2011. Morris v. State, 712 S.E.2d 130, 134 (Ga. Ct. App. 2011). On January
11, 2012, Petitioner filed a state habeas petition in the Superior Court of Mitchell
County. Petitioner raises in his federal habeas petition the same grounds for relief
that he raised in his state petition. The Magistrate Judge correctly observed that
“[t]o allow simultaneous federal and state habeas proceedings would offend the
principles of comity that form the basis for the exhaustion requirement.” Brown
v.Walker, No. 1:09-cv-2534-WSD, 2010 WL 3516820, at *1 (N.D. Ga. Aug. 31,
2010) (citing Horowitz v. Wainwright, 709 F.2d 1403, 1404 (11th Cir. 1983) (per
curiam)).
In his objections to the R&R, Petitioner observes that the state court has yet
to rule on his state habeas petition and argues that this delay of more than a year is
an unreasonable miscarriage of justice that warrants federal relief. “State remedies
will be found ineffective and a federal habeas petitioner will be excused from
exhausting them in the case of unreasonable, unexplained state delays in acting on
the petitioner’s motion for state relief.” Cook v. Florida Parole and Probation
Comm’n, 749 F.2d 678, 680 (11th Cir. 1985) (per curium). The Magistrate Judge
observed that Petitioner filed a brief in support of his state petition as recently as
November 22, 2012, and the delay is not as prolonged as Petitioner asserts. In any
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event, our Circuit has refused to waive the exhaustion requirement even in a case
involving a delay of eight years. See Hughes v. Stafford, 780 F.2d 1580, 1581 –
82 (11th Cir. 1986) (per curium). While the circumstances in Hughes were
unusual, the Court is not here inclined to find that the delay in this case rises to a
level that would excuse Petitioner from exhausting all available remedies at the
state level. See also Cook, 749 F. 2d at 680 (declining to waive exhaustion
requirement after a one year delay due to a clerical error) (“Save for an initial one
year delay allegedly resulting from a clerical error, the state’s delay in ruling on
Cook’s motion cannot be deemed unreasonable or unjustified. The state is not
merely dragging its feet, but is trying to hold a fair hearing on the motion.”). The
most appropriate course for Petitioner to challenge an unreasonable or abusive
delay in the processing of his state habeas petition is to seek a writ of mandamus in
the Georgia courts to compel the state habeas judge to rule on the petition. See
Jackson v. Walker, 206 F. App’x 967, 969 (11th Cir. 2006) (per curium). This
Court is not the proper forum now to apply for relief regarding the length of time
to process Petitioner’s state habeas petition.
Petitioner next argues that, under rules that apply in Georgia courts, he was
entitled to a ruling on his state habeas petition within ninety days of filing, and that
when a state court fails to follow its own procedural rules, federal habeas review is
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not precluded. Petitioner mistakenly relies on Peoples v. Campbell, 377 F.3d
1208, 1235 (11th Cir. 2004), for this proposition. In Peoples, the Circuit merely
observed that when a state court declines to rely on a petitioner’s procedural
default and instead proceeds to consider a claim that had in fact been waived, a
federal court may not subsequently invoke that default to bar federal habeas
review. Id. Peoples does not support Petitioner’s argument that a state court’s
failure to comply with its own procedural rules relieves a habeas petition of the
obligation first to exhaust his state remedies before seeking federal review.
Because Petitioner has not exhausted his state court remedies, this federal
habeas action is required to be dismissed. The Court also agrees with the
Magistrate Judge that a certificate of appealability should not be granted in this
case because Petitioner cannot show that reasonable jurists would debate the
dismissal of this habeas action for lack of exhaustion.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the Court ADOPTS Magistrate Judge
Russell G. Vineyard’s Final Report and Recommendation (“R&R) [3].
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE and that a Certificate of Appealablility is DENIED.
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IT IS FURTHER ORDERED that Petitioner’s Motions for Leave to File
Amended Petitions [8], [11] are DENIED AS MOOT.
SO ORDERED this 27th day of September, 2013.
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