Redford v. Conley

Filing 12

OPINION AND ORDER adopting Magistrate Judge Janet F. King's Final Report and Recommendation 9 , overruling Petitioner's Objections 11 , denying Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 1 and dismissing this action. It is further ordered that a certificate of appealability is denied. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DR. MIKE REDFORD,
Petitioner,
v.

1:17-cv-95-WSD

T.J. CONLEY, Warden,
Respondent.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. king’s Final
Report and Recommendation [9] (“R&R”), recommending that Petitioner
Dr. Mike Redford’s (“Petitioner”) Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 [1] (“Section 2254 Petition”) be denied, that this action be
dismissed, and that a certificate of appealability be denied. Also before the Court
are Petitioner’s Objections [11] to the R&R.
I.

BACKGROUND
On December 28, 2016, Petitioner filed his Section 2254 Petition, purporting

to challenge his 2002 “conviction,” in Gwinnett County state court, for reckless
conduct. Although Petitioner states that he was sentenced to “six months” for his
“conviction,” he also states that the Gwinnett County state court entered an order

of nolle prosequi dismissing the charges against him. ([1] at 1-2). Petitioner seeks
to “vacate [his] Gwinnett County 2002 reckless conduct nolle prosequi.” ([1] at 2,
10). Petitioner currently is serving a ten-year term of imprisonment for state court
aggravated stalking convictions in Douglas County. (R&R at 3); see Redford v.
State, 782 S.E.2d 791 (Ga. Ct. App. 2016).
On January 27, 2017, the Magistrate Judge ordered Petitioner, within
thirty days, to pay the required filing fee or seek leave to proceed
in forma pauperis (“IFP”). ([2] (“January 27 Order”)). The Magistrate Judge
warned Petitioner that his failure to comply with these instructions would result in
dismissal of this action. ([2]). On March 20, 2017, the Magistrate Judge issued
her R&R, recommending that this action be dismissed for failure to comply with
her January 27 Order and for failure to state a claim. On March 27, 2017,
Petitioner filed his 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 (11th Cir. 1982), cert. denied, 459 U.S.
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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). 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). Although Petitioner’s
Objections are incoherent and frivolous, and are not required to be considered, the
Court elects to conduct a de novo review of the record. See 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.”).
B.

Analysis
1.

Petitioner’s Section 2254 Petition

Petitioner’s Section 2254 Petition seeks to “vacate [his] Gwinnett County
2002 reckless conduct nolle prosequi.” ([1] at 2, 10). Section 2554 provides that
“a district court shall entertain an application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the
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United States.” 28 U.S.C. § 2254(a). “A federal habeas petitioner must be ‘in
custody’ under the conviction or sentence under attack at the time his petition is
filed.” Diaz v. State of Florida Fourth Judicial Circuit ex rel. Duval Cty., 683 F.3d
1261, 1264 (11th Cir. 2012). “Nolle prosequi is the State’s formal action on its
decision not to further prosecute an indictment.” Buice v. State, 528 S.E.2d 788,
789 (Ga. 2000) (citation omitted). “It is well established that entry of a
nolle prosequi terminates the prosecution pending on that indictment and that the
State cannot try a defendant on a charge that has been nol prossed.” Id.
The Magistrate Judge found, and the Court agrees, that “Petitioner simply
fails to show that he is in custody based on the 2002 nolle prosequi” that he
challenges in this action. (R&R at 4). The nolle prosequi “terminate[d] the
[Gwinnett County] prosecution” against Petitioner in 2002, and thus did not result
in a conviction or sentence of confinement. Even if it did, Petitioner has not shown
that he remains in custody pursuant to any conviction or sentence imposed in the
Gwinnett County state court case. The evidence shows that Petitioner’s
Section 2554 Petition was filed when he was in custody pursuant to aggravating
stalking convictions in Douglas County state court. Petitioner remains in custody
pursuant to these convictions, the validity of which he does not challenge in this
action. Petitioner’s Section 2554 Petition is denied because he has not shown he
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was “‘in custody’ under the conviction or sentence under attack at the time his
petition [was] filed.” Diaz, 683 F.3d at 1264; see Brewer v. Escambia Cty.
Sheriff's Dep’t, No. 3:15-CV-550-LC-GRJ, 2016 WL 1084720, at *1 (N.D. Fla.
Feb. 18, 2016) (finding that the pro se petitioner failed to show he was “in
custody” pursuant to a state court judgment because “the disposition for the charge
against Petitioner for the offense identified in her Petition was nolle prosequi”).1
2.

Certificate of Appealability

A federal habeas “applicant cannot take an appeal unless a circuit justice or a
circuit or district judge issues a certificate of appealability under 28 U.S.C.
§ 2253(c).” Fed. R. App. P. 22(b)(1). “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing Section 2254 Cases in the United States District Courts,
Rule 11(a). A court may issue a certificate of appealability “only if the applicant
1

This case also requires dismissal for failure to pay the required filing fee or
to seek permission to proceed IFP, in violation of the Magistrate Judge’s
January 27 Order. See LR 41.3(A)(2), NDGa (permitting the court to “dismiss a
civil case for want of prosecution if . . . [a] plaintiff . . . fail[s] or refuse[s] to obey
a lawful order of the court in the case”); see also Moon v. Newsome, 863 F.2d 835,
837 (11th Cir. 1989) (“[D]ismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion”).
Although Petitioner states, in his Objections, that he paid the fee required to initiate
this action, he has not submitted, and the Court has not found, any evidence
supporting this assertion.
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has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). A substantial showing of the denial of a constitutional
right “includes showing that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
When the district court denies a habeas petition on procedural
grounds . . . , a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.
Id.
The Magistrate Judge found, and the Court agrees, that a certificate of
appealability should be denied because it is not debateable that Petitioner fails to
assert claims warranting federal habeas relief.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. king’s Final

Report and Recommendation [9] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections [11] are
OVERRULED.
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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 [1] is DENIED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.

SO ORDERED this 2nd day of October, 2017.

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