REDFORD v. OBAMA et al
Filing
51
OPINION AND ORDER adopting Magistrate Judge Janet F. Kings Final Report and Recommendation 39 , granting Respondent Sellers Motion to Dismiss Petition for Lack of Exhaustion 28 , denying Petitioners Motion to Deny Respondents Motion to Dismiss 34 , denying Petitioners Motion to Strike 36 , denying Petitioners Motion for Disqualification and/or Recusal of Judge William Duffey Jr. 22 , denying Petitioners Motion for Subpoenas for Production of Evidence/Motion for Order for Daily Law Library [ 48], denying Petitioners Petition for the Writ of Mandamus against Judge William Duffey Jr. 49 , denying Petitioners Motion for Evidentiary Hearing 50 , and overruling Petitioner's Objections [20, 31, 33, 35, 46]. It if further ordered that a certificate of appealability is denied and this action is dismissed without prejudice. Signed by Judge William S. Duffey, Jr on 3/30/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MIKE REDFORD,
Petitioner,
v.
1:16-cv-2083-WSD
SELLERS, Warden, SAM OLENS,
Respondents.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [39] (“R&R”), recommending that Respondent
Sellers’ Motion to Dismiss Petition for Lack of Exhaustion [28] (“Motion to
Dismiss”) be granted, that Petitioner Mike Redford’s (“Petitioner”) Motion to
Deny Respondent’s Motion to Dismiss [34] be denied, that Petitioner’s Motion to
Strike [36] be denied, that this action be dismissed without prejudice, and that a
certificate of appealability be denied. Also before the Court are Petitioner’s
Motion for Disqualification and/or Recusal of Judge William Duffey Jr. [22]
(“Motion to Recuse”), Motion for Subpoenas for Production of Evidence/Motion
for Order for Daily Law Library [48], Petition for the Writ of Mandamus against
Judge William Duffey Jr. [49], and Motion for Evidentiary Hearing [50]
([48]-[50] collectively, “Post-R&R Motions”). Also before the Court are
Petitioner’s “Motion for Objection to Magistrate Order” [20], “Objection to
Magistrate Ruling/Motion for Reconsideration of Motion for an Evidentiary
Hearing” [31], “Motion for Certificate of Immediate Review” [33], “Objection to
Magistrate Order/Motion for Reconsideration on Motion for Disqualification
and/or Recusal of Magistrate Janet King” [35], and “Objection to Order by
Magistrate Judge on Petitioner’s Motion for a Jury Trial” [46] (collectively,
“Objections”), all of which challenge orders—but not the R&R—issued by the
Magistrate Judge.1
I.
BACKGROUND2
On August 19, 2016, a jury, in the Superior Court of Douglas County,
convicted Petitioner of two counts of aggravated stalking. ([29.2]). On
August 22, 2016, the state court sentenced Petitioner to twenty years in prison.
([29.3]). Petitioner filed three notices of appeal.
In May 2016, Petitioner filed his “Application for Heabas [sic] Corpus under
1
Petitioner’s Objections challenge, among other things, the Magistrate
Judge’s denial of his motions for an investigation, for a jury trial, and for the
Magistrate Judge’s recusal.
2
The facts are taken from the R&R and the record. The parties have not
objected to any specific facts in the R&R, and the Court finds no plain error in
them. The Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn,
993 F.2d 776, 779 n.9 (11th Cir. 1993).
2
28 U.S.C.A. 2254” [1] (“Initial Petition”). In June 2016, Petitioner filed his
“Motion to Substitute 28 U.S.C. 2254 with 2241” [5], seeking to bring his Initial
Petition under 28 U.S.C. § 2241. On July 21, 2016, the Magistrate Judge ordered
Petitioner to amend his Initial Petition because it failed to comply with the federal
habeas corpus rules. ([6]). The Magistrate Judge directed the Clerk of Court to
send Petitioner the habeas petition forms, and instructed Petitioner that the § 2254
form should be used if he already had been convicted, and that the § 2241 form
should be used if he still was in pre-trial confinement. ([6]).
On July 27, 2016, Petitioner filed his Amended Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241 by a Person in State Pretrial Detention [7] (“First
Amended Petition”). On August 8, 2016, the Magistrate Court granted Petitioner’s
motion to bring his petition under § 2241 instead of § 2254. ([8]). The Magistrate
Judge also ordered Petitioner to amend his First Amended Petition because it failed
to comply with the Magistrate Judge’s prior instructions. ([8]). The Magistrate
Judge advised Petitioner that his amended petition, when filed, would supersede
his prior pleadings. ([8]).
On October 4, 2016, Petitioner filed two Amended Petitions for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 by a Person in State Pretrial Detention [12]
(“Second Amended Petition”), [13] (“Third Amended Petition”). These are the
3
operative petitions in this action. The Second Amended Petition asserts the
following grounds for relief:
(1)
President Obama and the United States have purposely discriminated
against Petitioner to deprive him of his constitutional rights;
(2)
State actors purposely discriminate against the Black Race;
(3)
Federal or State actors purposely discriminated against Petitioner
because of his race and to deprive him of his constitutional rights,
have enacted law authorizing racist groups to falsely bring criminal
charges against Black persons, and have “paid a lawyer an alternate
jury to ask jurors to convict Petitioner”; and
(4)
Federal and State actors purposely discriminated against Petitioner to
deprive him of his constitutional rights because of his race, national
origin, and education in that “Respondents acted in criminal enterprise
stealthly [sic] to interfer [sic] with interstate commerce clause causing
Petitioner great economic loss . . . .”
(Second Am. Pet. ¶ 11).3
The Third Amended Petition asserts the following additional grounds for
relief:
(5)
Application of Georgia law to protective orders, stalking, and
aggravated stalking (O.C.G.A. §§ 19-3-4, 16-5-90, 16-5-91) caused
Petitioner to be confined unfairly;
(6)
Respondents set up an interstate conspiracy, because of Petitioner’s
race, to trap Petitioner and destroy his economic advantage;
3
Petitioner also asserts interference with evidence, the grand jury, and the
trial jury. (Second. Am. Pet. ¶ 12).
4
(7)
The grand jury selectively prosecuted Petitioner based on, among
other things, his race, and Petitioner was deprived of due process
during his trial; and
(8)
Petitioner was convicted in violation of equal protection and as the
result of mail censorship, perjury during grand jury proceedings, jury
tampering, erroneous jury instructions, and the denial of confrontation
rights. Petitioner asserts that no white man is in prison for refusing to
pay child support.
(Third Am. Pet. ¶ 11). Petitioner’s Second Amended Petition asserts that he is an
international political prisoner and that he seeks immediate release and an
investigation of federal and state officials. (Second Am. Pet. ¶ 13). His Third
Amended Petition asserts that he seeks redress for his wrongful convictions,
immediate release, and a nationwide criminal investigation. (Third Am. Pet. ¶ 13).
In November 2016, Petitioner filed his Motion to Recuse, asking the Court
to recuse itself from this action. On December 16, 2016, Respondent Sellers filed
his Answer-Response [27] and his Motion to Dismiss, seeking dismissal of
Petitioner’s Second and Third Amended Petitions for lack of exhaustion because
Petitioner’s direct appeal is pending. ([28.1] at 2). On December 20, 2016,
Petitioner filed his Motion to Deny Respondent’s Motion to Dismiss, stating that
his habeas petitions challenge his pretrial custody. ([34]). The same day,
Petitioner filed his Motion to Strike, arguing that Respondent Sellers’
Answer-Response [27] should be stricken on the grounds that Respondent relies on
5
§ 2254 while Petitioner proceeds under § 2241. ([36]). Petitioner states he is not
challenging his Douglas County convictions and that “[t]his pretrial custody
challenge i[s] pursuant to 28 U.S.C. § 2241.” ([36] at 5; R&R at 8).
On January 12, 2017, the Magistrate Judge issued her R&R, recommending
that Respondent Sellers’ Motion to Dismiss be granted, that this action be
dismissed, and that a certificate of appealability be denied.
II.
DISCUSSION
A.
Motion to Recuse
28 U.S.C. § 455 states the criteria for the disqualification of federal judges.
Section 455(a) provides that a judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). To
satisfy the requirements of Section 455(a), a party seeking recusal must offer facts,
and not merely allegations, that evidence partiality. United States v. Cerceda, 188
F.3d 1291, 1292 (11th Cir. 1999); Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226,
1227 (10th Cir. 1987) (“Allegations under [Section 455] need not be taken as
true.”).
Petitioner states that the Court “has manifested partiality and personal bias
since 2002 against petitioner and he is a racist.” ([22] at 1). He states the Court
“advocates racial inferiority of blacks [sic] intellectual abilities, a racial superiority
6
opinions manifested over the years his impartiality is reasonably questioned.”
([22] at 1). He states further that the Court is “in cohort with many state corrupt
officials . . . .” ([22] at 1). Petitioner does not offer any evidence to support these
accusations. Because Petitioner offers only bare allegations of partiality,
Petitioner’s Motion to Recuse is denied. See Cerceda, 188 F.3d at 1292.
B.
R&R
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 no party has objected to the report and recommendation, the
Court conducts only a plain error review of the record. United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). The parties have not objected
to the R&R, and the Court thus reviews it for plain error.4
4
On February 2, 2017, Petitioner filed a document entitled “Notice of Filing
of Exhibits 3, 7, 8, 9 on Objection to Magistrate Report and
Recommendation” [47]. The filing attaches several documents and states, without
elaboration, that “notice is hereby given that the exhibits 3, 7, 8, and 9 are now
7
The Magistrate Judge found that, to the extent Petitioner challenges his
pretrial confinement, his claims are moot because he has been convicted and
sentenced. The Court finds no plain error in this conclusion. See
Murphy v. Hunt, 455 U.S. 478, 481 (1982) (holding that a constitutional claim on
pretrial bail was mooted by conviction); Jackson v. Clements, 796 F.3d 841, 843
(7th Cir. 2015) (“Once Mr. Jackson was convicted, the claims concerning his pretrial confinement became moot.”); Yohey v. Collins, 985 F.2d 222, 228-29 (5th
Cir. 1993) (“Yohey claims that the state court erred in refusing to grant his requests
for pretrial habeas relief. However, such claims for federal habeas relief for
pretrial issues are mooted by Yohey’s subsequent conviction.”); Fassler v. United
States, 858 F.2d 1016, 1017-018 (5th Cir. 1988) (finding that conviction moots
claims regarding the “illegality of . . . pretrial detention”).
filed that completes the remaining [illegible] objection to Magistrate Report and
Recommendation in the above styled case.” ([47] at 1). To the extent this
constitutes an objection to the R&R, the objection is disregarded as “frivolous,
conclusive, or general” and the Court conducts a plain error review of the record.
Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (“Parties filing
objections to a magistrate’s report and recommendation must specifically identify
those findings objected to. Frivolous, conclusive, or general objections need not be
considered by the district court.”); see Heath v. Jones, 863 F.2d 815, 822 (11th Cir.
1989) (“[T]o challenge the findings and recommendations of the magistrate
[judge], a party must . . . file . . . written objections which shall specifically identify
the portions of the proposed findings and recommendation to which objection is
made and the specific basis for objection.”).
8
The Magistrate Judge found that, to the extent Petitioner challenges his
convictions or otherwise asserts claims properly raised after conviction, his claims
are required to be denied without prejudice because he has not exhausted his state
court remedies. The Court finds no plain error in this determination. See 28
U.S.C. § 2254(b)(1) (a district court may not grant a petition 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”).
The Magistrate Judge also concluded that a certificate of appealability
should be denied because it is not reasonably debatable that Petitioner is not
entitled to relief. The Court finds no plain error in this determination.5
5
The Court also finds no plain error in the Magistrate Judge’s conclusions
that Petitioner’s Motion to Deny Respondent’s Motion to Dismiss [34] and Motion
to Strike [36] should be denied. Because this action is required to be dismissed
and Petitioner fails to show he is entitled to the relief he seeks, Petitioner’s
Objections and Post-R&R Motions are moot or otherwise lack merit. His
Objections are overruled and his Post-R&R Motions are denied.
9
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final
Report and Recommendation [39] is ADOPTED.
IT IS FURTHER ORDERED that Respondent Sellers’ Motion to Dismiss
Petition for Lack of Exhaustion [28] is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Deny
Respondent’s Motion to Dismiss [34] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Strike [36] is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Disqualification
and/or Recusal of Judge William Duffey Jr. [22] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Subpoenas for
Production of Evidence/Motion for Order for Daily Law Library [48] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Petition for the Writ of
Mandamus against Judge William Duffey Jr. [49] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion for Evidentiary
10
Hearing [50] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s “Motion for Objection to
Magistrate Order” [20], “Objection to Magistrate Ruling/Motion for
Reconsideration of Motion for an Evidentiary Hearing” [31], “Motion for
Certificate of Immediate Review” [33], “Objection to Magistrate Order/Motion for
Reconsideration on Motion for Disqualification and/or Recusal of Magistrate Janet
King” [35], and “Objection to Order by Magistrate Judge on Petitioner’s Motion
for a Jury Trial” [46] are OVERRULED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT
PREJUDICE.
SO ORDERED this 30th day of March, 2017.
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