Brown v. Unnamed Respondent

Filing 7

OPINION AND ORDER adopting 5 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. Signed by Judge William S. Duffey, Jr on 3/30/2016. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DONNAVIN DESEAN MARCUS
BROWN,
Petitioner,
v.

1:15-cv-2506-WSD

SHERIFF ERIC J. LEVETT,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Justin S. Anand’s Final
Report and Recommendation [5] (“R&R”). The R&R recommends that this action
be dismissed without prejudice.
I.

BACKGROUND
On July 13, 2015, Petitioner Donnavin Desean Marcus Brown (“Petitioner”)

submitted a letter [1] seeking habeas relief. Plaintiff did not pay the required $5.00
filing fee or seek leave to proceed in forma pauperis. On July 22, 2015, the
Magistrate Judge ordered [2] Petitioner to complete and return a habeas corpus
petition form. On August 7, 2015, Petitioner submitted his completed habeas
corpus petition form [3] (“Habeas Petition”).

In his Habeas Petition, Petitioner states that, on May 16, 2011, he entered a
guilty plea in the Superior Court of Rockdale County, and that he was sentenced to
ten (10) years imprisonment for burglary. ([3] at 1). Petitioner did not appeal his
conviction(s) and sentence in state court. (Id. at 2).
On May 12, 2015, Petitioner signed and filed a civil rights action in this
Court, (id. at 3), which was docketed on June 1, 2015, and dismissed on
July 2, 2015. See Brown v. Levett, No. 1:15-cv-1970-WSD (N.D. Ga.
July 2, 2015). One of Petitioner’s submissions in that case reveals that his
probation arising from his May 2011 conviction(s) was revoked on June 1, 2015,
for “technical violations,” and he was sentenced to serve two (2) more years of his
original sentence. See Brown, No. 1:15-cv-1970 (ECF No. 6 at 3-8).
On August 27, 2015, the Magistrate Judge issued his R&R, following his
review of the Habeas Petition pursuant to Rule 4 of the Rules Governing Section
2254 cases. In it, the Magistrate Judge determined that it is apparent from the face
of Petitioner’s Habeas Petition that he has not exhausted his state court remedies
through one complete round of the state’s appellate review process with respect to
either his May 16, 2011, conviction(s) and sentence or his June 1, 2015, probation
revocation. (R&R at 4). The Magistrate Judge recommended this action be

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dismissed without prejudice for lack of exhaustion. (Id.). He recommended the
Court deny a certificate of appealability (“COA”). (Id. at 4-5).
Petitioner did not file any objections 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, 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). Where, as here, no party has objected to the report and
recommendation, a court conducts only a plain error review of the record. United
States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
B.

Analysis

The Magistrate Judge determined that it is apparent from the face of
Petitioner’s Habeas Petition that he has not exhausted his state court remedies
through one complete round of the state’s appellate review process with respect to
either his May 16, 2011, conviction(s) and sentence or his June 1, 2015, probation
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revocation. (R&R at 4). The Magistrate Judge recommended that this action be
dismissed without prejudice. The Court finds no plain error in the Magistrate
Judge’s findings and recommendation, and this action is dismissed without
prejudice. See Slay, 714 F.2d at 1095.
The Magistrate Judge also recommended that a COA should not be issued,
because jurists of reason would not find it debatable whether the Habeas Petition
should be dismissed for lack of exhaustion. (R&R at 4-5). The Court finds no
plain error in the Magistrate Judge’s findings and recommendation, and a COA is
denied. See Slay, 714 F.2d at 1095.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Justin S. Anand’s Final

Report and Recommendation [5] is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED.

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SO ORDERED this 30th day of March, 2016.

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