Thornton v. Supreme Court of Georgia et al

Filing 8

OPINION AND ORDER adopting Magistrate Judge Linda T. Walker's Final Report and Recommendation 2 , overruling Petitioner's Objections 5 and dismissing this action. It is further ordered that the Clerk is directed to docket Petitioners Not ice 1 in Thornton v. Seabolt, No. 1:13-cv-3692-WSD (N.D. Ga. Nov. 5, 2013). The Notice shall be docketed as a notice of appeal of the Seabolt court's September 2, 2016, Order, which is document number 48 in that case. 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
GEORGETTE BENITA
THORNTON,
Petitioner,
v.

1:17-cv-277-WSD

SUPREME COURT OF GEORGIA,
Clerk of Court, UNITED STATES
COURT OF APPEALS, Clerk of
Court, STATE OF GEORGIA
ATTORNEY GENERAL, and
DEPARTMENT OF
CORRECTIONS
COMMISSIONER,
Respondents.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [2], recommending that this action be dismissed and
that Petitioner Georgette Benita Thornton’s (“Petitioner”) Affidavit Notice of
Intention [1] (“Notice”) be docketed in Thornton v. Seabolt, No. 1:13-cv-3692WSD (N.D. Ga. Nov. 5, 2013) (the “Seabolt Action”). Also before the Court are
Petitioner’s Objections [5] to the R&R.

I.

BACKGROUND
In October 2003, in the Superior Court of Clayton County, Petitioner was

convicted of felony murder and concealing the death of another. Petitioner was
sentenced to life imprisonment plus five years. On October 3, 2005, the Georgia
Supreme Court affirmed Petitioner’s convictions. Thornton v. State, 620 S.E.2d
356 (Ga. 2005). Eight years later, on October 30, 2013, Petitioner filed her
Seabolt Action in the United States District Court for the Northern District of
Georgia, seeking habeas relief under 28 U.S.C. § 2254. On July 25, 2014, the
Seabolt court dismissed Petitioner’s habeas petition as untimely. On
October 17, 2014, the Court of Appeals for the Eleventh Circuit dismissed
Petitioner’s appeal of the district court’s denial of habeas relief. On
September 4, 2014, October 3, 2014, and April 10, 2015, the Eleventh Circuit
denied Petitioner’s applications for leave to file a second or successive habeas
corpus petition. On September 2, 2016, the Seabolt court denied Petitioner’s
motions for relief under Federal Rule of Civil Procedure 60, finding that the
motions, properly construed, were unauthorized “successive Section 2254
petitions.” Seabolt Action, Doc. No. 48 at 5.
In January 2017, Petitioner, pro se, sent her Notice to the Court of Appeals
for the Eleventh Circuit. The Notice is addressed to “Georgia Supreme Court
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(Clerk of Court),” “United States Court of Appeals (Clerk of Court),” “State of
Georgia Attorney General,” and “Department of Corrections Commissioner.”
(Notice at 1). Petitioner’s Notice seeks to explain the “reasons for delay in filing
direct or collateral attack challenging Petitioner’s conviction.” (Notice at 1). The
Notice states that Petitioner “has not been able to properly access the courts
through the prison,” and that “an ‘Ex Parte Application’ is needed by Petitioner to
further her direct attack and collateral attack in both the Supreme Court of Georgia
and the United States Court of Appeals.” (Notice at 1-2).
On January 20, 2017, the Clerk of Court for the Eleventh Circuit Court of
Appeals mailed a response to Petitioner, copying the Clerk of Court for the District
Court for the Northern District of Georgia. ([1.1]). The Court of Appeals Clerk
construed the Notice as a “Notice of Appeal and/or Motion for Certificate of
Appealability” in the Seabolt Action, and “forwarded [it] to the district court to be
filed as of the date received in th[e] [Court of Appeals], January 17, 2017.” ([1.1]
at 2). On January 24, 2017, the Notice was docketed, in this case, as a habeas
corpus petition under Section 2554. ([1]).
On January 30, 2017, the Magistrate Judge issued her R&R, recommending
that this action be dismissed and that Petitioner’s Notice be docketed, in the

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Seabolt Action, as a notice of appeal. On February 8, 2017, Petitioner filed her
pro se Objections [5] 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.
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).
Petitioner has filed 40 pages of handwritten objections to the R&R, attaching
49 pages of exhibits. Petitioner’s Objections are rambling, incoherent, and
difficult to understand. They include a request “to mandate ‘to issue a court order’
a requirement mandating the warden Ms. Mickens to comply with Federal Rules of
Civil Procedure.” ([5] at 1). The Objections also refer repeatedly to the
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Seabolt Action and appear to seek equitable tolling of the limitations period
applicable to federal habeas petitions. Petitioner does not clearly challenge any
specific portions of the R&R, and the Court thus reviews the Magistrate Judge’s
findings and recommendations for plain error. 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.”).1
B.

Analysis

“A state prisoner who has previously filed a § 2254 petition in federal court
must obtain authorization from [the Eleventh Circuit Court of Appeals] before
filing a ‘second or successive’ collateral attack on the same conviction.”
Philistin v. Warden, ___ Fed. App’x ___, 2017 WL 3129105, at *1 (11th Cir.
July 24, 2017). “Without authorization, the district court lacks jurisdiction to
consider a successive § 2254 petition and must dismiss the claims presented
therein.” Id. The Magistrate Judge found that this action should be dismissed
because, “[t]o the extent Petitioner’s notice can be construed as a § 2254 petition, it
is impermissibly successive because the court of appeals has denied Petitioner
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The Court would reach the same conclusions expressed in this Order even if
Petitioner had filed proper objections and the Court conducted a de novo review of
the record.
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leave to file another § 2254 petition.” (R&R at 2). The Court finds no plain error
in the Magistrate Judge’s determination, and this action is dismissed.
The Magistrate Judge also found that, “[g]iven the court of appeals’ view
that Petitioner’s notice is a desire to appeal, the notice should have been docketed
as a notice of appeal in [the Seabolt Action].” (R&R at 3). The Magistrate Judge
concluded that, “[l]iberally construing the notice, Petitioner may intend to appeal
the Court’s denial in September 2016 of her Rule 60 motions in that case.” (R&R
at 3). The Magistrate Judge thus recommends docketing Petitioner’s Notice, in the
Seabolt Action, as a notice of appeal of the Seabolt court’s September 2, 2016,
Order denying relief under Rule 60 of the Federal Rules of Civil Procedure. The
Court finds no plain error in the Magistrate Judge’s findings and recommendations.
The Court of Appeals Clerk sent the Notice to this Court, intending it to be filed as
a notice of appeal in the Seabolt Action. That it was docked in this case, as a
Section 2554 habeas petition, appears to have been a clerical error. The Court
agrees with the Magistrate Judge that the Notice should now be docketed in the
Seabolt Action, as the Court of Appeals Clerk initially intended.

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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final

Report and Recommendation [2] is ADOPTED.
IT IS FURTHER ORDERED that Petitioner’s Objections [5] are
OVERRULED.
IT IS FURTHER ORDERED that this action is DISMISSED.
IT IS FURTHER ORDERED that the Clerk is DIRECTED to docket
Petitioner’s Notice [1] in Thornton v. Seabolt, No. 1:13-cv-3692-WSD (N.D. Ga.
Nov. 5, 2013). The Notice shall be docketed as a notice of appeal of the Seabolt
court’s September 2, 2016, Order, which is document number 48 in that case.

SO ORDERED this 2nd day of October, 2017.

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