Andriatti v. Warren
Filing
13
OPINION AND ORDER that the Final Report and Recommendation 3 is ADOPTED. IT IS FURTHER ORDERED that Petitioner's Motion to Amend Defendants 5 , Motion for the Court to Order and Compel Release 8 , and Motions for Default Judgment 9 , 10 are DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge William S. Duffey, Jr on 7/25/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TESS HOLLIS ANDRIATTI,
Petitioner,
v.
1:13-cv-4031-WSD
SHERIFF NEIL WARREN,
Respondent.
OPINION AND ORDER
This matter is before the Court on Petitioner Tess Hollis Andriatti’s
(“Petitioner”) pro se objections [6] to Magistrate Judge Gerrilyn G. Brill’s Final
Report and Recommendation [3] (“R&R”). Also before the Court are Petitioner’s
Motion to Amend Defendants [5], Motion for the Court to Order and Compel
Release [8], Motion for Default Judgment against Neil Warren, Cobb County
Sheriff (“Warren”) [9], and Motion for Default Judgment against the State of
Georgia [10].
I.
BACKGROUND
Petitioner, proceeding pro se, is an inmate at the Cobb County Adult
Detention Center in Marietta, Georgia. On December 4, 2013, Petitioner filed her
Petition pursuant to 28 U.S.C. § 2241 (the “Petition”).1 In the Petition, Petitioner
contends she is “imprisoned against her will” for “illegal” charges. (Pet. at 1.)
According to Petitioner, in October 2009, she was “illegally charged but never
indicted” with five felony counts of first degree forgery, four counts of making
false statements, and one count of “Georgia Rico.” (Id.) Petitioner asserts she was
denied bond for “a victimless crime” and that “the entire manner constitutes a
‘conspiracy against [her] rights’ and ‘[a] denial of due process.’” (Id.) Petitioner
also asserts that the State of Georgia lacks “in personam” [sic] “jurisdiction” to
prosecute her because she is a woman. (Id. at 2.) Petitioner seeks release and
expungement of her criminal record.
On February 3, 2014, the Magistrate Judge issued her R&R, reviewing the
Petition under Rule 4 of the Rules Governing Section 2254 Cases (“Rule 4”),
recommending that the Petition be dismissed without prejudice because it “plainly
appears . . . that the petitioner is not entitled to relief in the district court.”2 The
1
The facts are taken from the R&R and the record. The parties have not
objected to any facts set out in the R&R, and finding no plain error in the
Magistrate Judge’s findings, the Court adopts them. See Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993).
2
Rule 1 provides that “[t]he district court may apply any or all of these rules
[governing § 2254 cases] to a habeas corpus case not covered by [§ 2254].” R.
Governing § 2254 Cases 1(b). The Court concludes that the Magistrate Judge
appropriately applied Rule 4 to this case.
2
Magistrate Judge also recommended that the Court not grant Petitioner a certificate
of appealability (“COA”).
On February 3, 2013, Petitioner filed an “Amendments [sic] to Add
Defendants,” which the Court construes as her Motion to Add Defendants [5].
Petitioner seeks to add: Judge Dorothy Robinson; Sheriff Neal Warren; Cobb
County, Georgia; Victor Reynols, “D.A.;” and Rebecca Keaton, “Superior Court
Clerk.”
On February 14, 2014, Petitioner filed her objections [6] to the R&R. On
April 23, 2014, Petitioner filed a Motion for the Court to Order and Compel
Release [8]. On May 29, 2014, Plaintiff filed Motions for Default Judgment [9,
10] against Warren and the State of Georgia3 for not answering the Petition.
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) (Supp. IV 2010);
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
3
The Court notes that Petitioner moved for default judgment against the State
of Georgia. Petitioner has not named the State of Georgia as a defendant in this
action.
3
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). With respect to those findings and recommendations to
which objections have not been asserted, 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).
B.
Analysis
1.
Objections to the R&R
In her objections, Petitioner asserted that she does “not have a pending
criminal case” (Obj. at 1) and therefore the Magistrate Judge’s application of
Younger v. Harris, 401 U.S. 37 (1971), “cannot be used [because] [t]his case is not
an open case with ‘pending state criminal prosecution[s] and [Petitioner] is not
being held on criminal charges.” (Id. at 2.) Petitioner’s arguments are unfounded.
In her Petition, Petitioner specifically stated that she is presently “imprisoned
against her will,” and was “charged . . . for 5 counts of Felony [sic].” (Pet. at 1.)
The Magistrate Judge reasoned that if Petitioner is currently being held on criminal
charges, as she asserts in her Petition, then the Court is prohibited by the Younger4
4
In Younger, the Supreme Court established that federal courts “should not
act, and particularly should not act to restrain a criminal prosecution, when the
moving party has an adequate remedy at law and will not suffer irreparable injury
4
abstention doctrine from interfering with Petitioner’s untried state criminal
proceedings
Younger allows a federal court to intervene in a pending state criminal
proceeding only under extraordinary circumstances. Those circumstances are:
“(1) [that] there is evidence of state proceedings motivated by bad faith, (2) [that]
irreparable injury would occur, or (3) [that] there is no adequate alternative state
forum where the constitutional issues can be raised.” See Hughes v. Attorney
General of Fla., 377 F.3d 1258, 1262 n.4 (11th Cir. 2004) (citing Younger, 401
U.S. at 53-54). The Magistrate Judge found that no exception to the Younger
abstention doctrine applies in this action because Petitioner did not allege an
irreparable injury or a flagrant violation of her rights. The Magistrate Judge also
found that Petitioner’s allegations do not demonstrate that her prosecution is
motivated by bad faith.
In her objections, Petitioner made the conclusory assertion that she “has
alleged irreparable injury and flagrant allegations of rights do [sic] demonstrate
that her prosecution is motivated by bad faith” (Obj. at 2). Upon de novo review,
if denied equitable relief.” Younger, 401 U.S. at 44-43. Constitutional claims
must, instead, be raised in the ongoing state proceeding “‘unless it plainly appears
that this course would not afford adequate protection.’” Id. at 45 (quoting Fenner
v. Boykin, 271 U.S. 240, 244 (1926)).
5
the Court concludes that Petitioner does not provide factual support for these
conclusions, and Plaintiff’s objections to the findings and recommendations in the
R&R are required to be overruled. See Papasan v. Allain, 478 U.S. 265, 286
(1986) (approving rejection of conclusory assertions that lack factual support); see
also Cain v. Polen, 454 F. App’x 716, 716 (11th Cir. 2011) (explaining that a
prisoner’s allegations must offer factual support, and conclusory statements are
insufficient).
Petitioner did not object to the Magistrate Judge’s finding that she has not
sought state habeas corpus relief, and that she still has state court remedies
available to her.5 Petitioner must exhaust her state court remedies before the Court
can grant federal habeas relief that she is seeking under Section 2254.6 See Ali v.
5
A detainee in Georgia may seek a writ of habeas corpus to challenge the
legality of her confinement. See O.C.G.A. § 9-14-1(a) (“Any person restrained of
his liberty under any pretext whatsoever . . . may seek a writ of habeas corpus to
inquire into the legality of the restraint.”). Georgia permits a petitioner, whose
habeas petition is not granted, to appeal the denial of habeas relief. See O.C.G.A.
§ 5-6-34(a)(7).
6
A federal court cannot grant habeas relief unless the petitioner “has
exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). 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).
Before seeking federal habeas corpus relief, “[s]tate prisoners must give the state
courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” O’Sullivan v.
6
State of Fla., 777 F.2d 1489, 1490 (11th Cir. 1985) (affirming dismissal of federal
habeas petition “[b]ecause it is clear that the state is asserting exhaustion as a
defense, and because it is clear that [the petitioner] did not exhaust available state
remedies”). The Court finds no plain error in the Magistrate Judge’s finding that
Petitioner did not exhaust her state court remedies.
2.
Certificate of Appealability
Petitioner next objects to the Magistrate Judge’s recommendation that a
COA be denied because “this Court has no right or ground to deny a [COA]” and
“Petitioner has made a substantial showing of the denial of constitutional rights.”
(Obj. at 3.) A state prisoner proceeding under 28 U.S.C. § 2241 must obtain a
COA to appeal from a district court’s denial of the prisoner’s habeas petition. See
28 U.S.C. § 2253(c)(1)(A); Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir.
2003). A district court “must issue or deny a Certificate of Appealability when it
enters a final order adverse to the appellant.” See R. Governing § 2254 Cases 11.
The Magistrate Judge correctly found that a COA should not be issued because
Petitioner did not make a substantial showing of the denial of a constitutional right
and reasonable jurists could not find this conclusion “debatable or wrong.” See
Boerckel, 526 U.S. 838, 845 (1999); Mason v. Allen, 605 F.3d 1114, 1119 (11th
Cir. 2010).
7
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The COA is denied and
Petitioner’s objection is required to be overruled.7
III.
CONCLUSION
Having reviewed the Petition and Petitioner’s objections, the Court agrees
with the findings and recommendations of the Magistrate Judge in the R&R and
finds further that Petitioner’s objections are required to be overruled, and that this
case is required to be dismissed without prejudice.8, 9
7
In its de novo review, the Court notes that even if Petitioner could make a
substantial showing of the denial of an alleged constitutional right—which she has
not—reasonable jurists could not disagree that the Petition is required to be
dismissed based on lack of exhaustion. See Jimenez v. Quarterman, 555 U.S. 113,
118 n.3 (2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)) (noting
that, when a habeas petition is dismissed on procedural grounds, “without reaching
the prisoner’s underlying constitutional claim . . . a certificate of appealability
should issue only when the prisoner shows . . . that jurists of reason would find it
debatable whether the petition states a valid claim . . . and . . . whether the district
court was correct in its procedural ruling”).
8
In light of Petitioner’s pro se status, the Court assumes that Petitioner
intended to bring against these additional defendants the same claims that she
brings against Warren. Petitioner does not explain who the proposed defendants
are or why these individuals should be added as defendants to this action.
Petitioner has made no showing of permissive or required joinder under Federal
Rules of Civil Procedure 19 and 20. Because Petitioner failed to allege anything
for which the proposed defendants may be liable, the proposed defendants have no
“fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’”
Enwonwu v. Fulton-Dekalb Hosp. Auth., 286 Fed. Appx. 586, 598 (11th Cir.
2008), citing Coon v. Georgia Pac. Corp., 829 F.2d 1563, 1569 (11th Cir. 1987)
(internal citation omitted). In light of Petitioner’s failure make any showing of
8
Accordingly, and for the foregoing reasons stated in this Order,
IT IS HEREBY ORDERED that Petitioner’s pro se objections [6] are
OVERRRULED.
IT IS FURTHER ORDERED that Magistrate Judge Gerrilyn G. Brill’s
Final Report and Recommendation [3] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Amend
Defendants [5], Motion for the Court to Order and Compel Release [8], and
Motions for Default Judgment [9, 10] are DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
why these unknown individuals should be named as defendants in this action,
Petitioner’s Motion to Amend Defendants [5] is denied.
9
Petitioner’s Motions for Default Judgment [9, 10] are also required to be
denied. “The entry of a default judgment is committed to the discretion of the
district court . . . .” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1576 (11th Cir. 1985)
(citing 10A Charles Alan Wright et al., Federal Practice and Procedure § 2685
(1983)). Default judgment is not appropriate in this action. See, e.g. Cruz v.
United States, No. 1:13-cv-1843, 2013 WL 6145266, at *1 (N.D. Ga. Oct. 23,
2013) (citing Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987)) (“default
judgment is not contemplated in habeas corpus cases”); Goodman v. Keohane, 663
F.2d 1044, 1048 n.4 (11th Cir. 1981) (rejecting petitioner’s argument that the
government’s tardiness in responding to his petition entitled him to habeas relief).
The Magistrate Judge concluded that Petitioner’s claims are meritless, and the
Court finds no plain error in this finding. Accordingly, Petitioner’s Motion for the
Court to Compel Release [8] is also required to be denied.
9
SO ORDERED this 25th day of July, 2014.
10
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