Fambro v. Taylor
Filing
25
OPINION AND ORDER adopting Magistrate Judge John K. Larkin III's Final Report and Recommendation 21 . Respondent's Motion to Dismiss 11 is granting and this action is dismissed without prejudice for lack of exhaustion. Petitioner's Motion for Summary Judgment 15 and Petitioner's motion for a hearing 19 are denied as moot. Petitioner's Motion for Compulsory Examination 24 is denied. It is further ordered that a certificate of appealability is denied. Signed by Judge William S. Duffey, Jr on 1/5/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WARREN FAMBRO,
Petitioner,
v.
1:17-cv-1455-WSD
CEDRIC TAYLOR,
Respondent.
OPINION AND ORDER
This matter is before the Court on Magistrate Judge John K. Larkin III’s
Final Report and Recommendation [21] (“R&R”) and Petitioner’s Motion for
Compulsory Examination [24]. The R&R recommends the Court grant
Respondent Cedric Taylor’s Motion to Dismiss [11] and deny Petitioner’s Motion
for Summary Judgment [15] and motion for a hearing [19] as moot.
I.
BACKGROUND1
In 2011, a jury convicted Petitioner of rape and child molestation. ([12-1]
at 2). He was sentenced to life in prison for rape and twenty years in prison for
1
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).
child molestation. (Id.) He filed a motion for new trial, which was denied in
October 2014. (Id. at 3). He filed a notice of appeal on November 16, 2014,
which was docketed with the Court of Appeals on August 27, 2015. (Id.)
Petitioner raised the following grounds on appeal: (1) his character was
impermissibly impugned by his trial counsel when he mistakenly stated Petitioner
had previously pled guilty to the rape of two women; (2) the trial court erred by
failing to sua sponte declare a mistrial or give a curative instruction immediately
after the erroneous statement was made; (3) the curative instruction given by the
trial court was insufficient; and (4) the trial court erred by denying his motion for
new trial based on his trial counsel’s ineffective assistance for making this
statement. ([12-3]).
On June 17, 2015, before the Georgia Court of Appeals had resolved his
direct appeal, Petitioner filed a pro se habeas corpus petition in the Superior Court
of Fulton County. ([20 at 2]). On June 24, 2015, Petitioner’s state habeas petition
was dismissed without prejudice as premature because his conviction was not yet
final. (Id.) On June 22, 2016, the Georgia Court of Appeals affirmed Petitioner’s
conviction and sentence. Fambro v. State, No. A16A0040 (Ga. App. June 22,
2016), ([12-3] at 12). It does not appear that Petitioner filed another habeas corpus
petition in state court.
2
Petitioner filed the present petition on April 11, 2017, and an amended
petition on May 15, 2017. ([1], [4]). Petitioner asserts the following grounds: (1)
a medical examination that would show no rape occurred was concealed at trial;
(2) Officer James McNatt committed fraud in his investigation of Petitioner’s case;
(3) the evidence of similar transactions presented by the prosecution was too
remote and inflammatory; and (4) he had three new trials. ([4] at 6).
Respondent filed an answer and a motion to dismiss on June 15, 2017.
([10], [11]). Petitioner filed a response to the motion to dismiss ([13]) on July 17,
2017, and a motion for summary judgment ([15]) on September 25, 2017.
Respondent filed a brief in response to the motion for summary judgment on
October 11, 2017. ([16]). Petitioner filed a supplemental brief on October 27,
2017, and a motion to compel a hearing date on November 30, 2017. ([17], [19]).
Respondent filed a supplemental brief in support of his motion to dismiss on
December 8, 2017. ([20]). Petitioner filed a “Motion for Compulsory
Examination” on December 11, 2017, pursuant to 28 U.S.C. § 2254, asserting the
same grounds cited in his amended petition of May 15, 2017.
On December 12, 2017, the Magistrate Judge issued his R&R. ([21]). The
Magistrate Judge found that Plaintiff failed to exhaust his available administrative
remedies. He recommends the Court grant Defendants’ Motion to Dismiss,
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dismiss this action without prejudice for lack of exhaustion, and deny a certificate
of appealability. Petitioner did not file 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, 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).
B.
Analysis
A federal court may issue a writ of habeas corpus on behalf of a person held
in custody pursuant to a judgment of a state court if that person is held in violation
of his rights under federal law. 28 U.S.C. § 2254(a). A district court may not grant
an application for 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
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available State corrective process; or (ii) circumstances exist that render such
process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1).
To exhaust state remedies, a petitioner must present his claims, on direct appeal or
collateral review, to the highest state court of review according to that state’s
appellate procedure and “complete” the process by giving the state courts a “full
opportunity to resolve any constitutional issues.” O’Sullivan v. Boerckel, 526 U.S.
838, 845-47 (1999).
The Magistrate Judge noted that Petitioner’s state habeas proceedings were
dismissed as premature and found that Petitioner has not exhausted his available
state remedies. The premature filing of a state habeas petition does not fairly
present an issue to the state habeas courts because they may not entertain a state
habeas proceeding until Petitioner’s direct review is complete and his conviction is
final. See Horton v. Wilkes, 250 Ga. 902, 903 (1983) (A “person imprisoned by
virtue of a sentence of a state court of record cannot institute a petition for habeas
corpus until the conviction is final,” and it is not final while direct appeal is
incomplete). The Magistrate Judge concluded that Petitioner has not otherwise
fairly presented the claims in his federal petition to the state courts for adjudication
and, therefore, the motion to dismiss should be granted. The Court finds no plain
5
error in these findings and recommendation, and Respondent’s Motion to Dismiss
is granted. See Slay, 714 F.2d at 1095.
The Magistrate Judge further concluded that in light of the recommendation
that this case be dismissed for failure to exhaust, Petitioner’s motion for summary
judgment and his request for a hearing should be denied as moot. The Court finds
no plain error in these findings and recommendation, and Petitioner’s Motion for
Summary Judgment is denied as moot. See Slay, 714 F.2d at 1095.
The Magistrate Judge did not address Petitioner’s Motion for Compulsory
Examination [24], which docketed the day before the R&R issued. Petitioner’s
Motion for Compulsory Examination asserts the same grounds as the amended
petition considered by the Magistrate Judge and is denied for the same reasons.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge John K. Larkin III’s
Final Report and Recommendation [21] is ADOPTED.
IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss [11] is
GRANTED. This action is DISMISSED WITHOUT PREJUDICE for lack of
exhaustion.
IT IS FURTHER ORDERED that Petitioner’s Motion for Summary
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Judgment [15] and Petitioner’s motion for a hearing [19] are DENIED as moot.
IT IS FURTHER ORDERED that Petitioner’s Motion for Compulsory
Examination [24] is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.2
SO ORDERED this 5th day of January, 2018.
2
The Final R&R recommended denying a certificate of appealability
“because the resolution of the issues presented is not debatable.” ([21] at 6). The
Court finds no plain error in the Magistrate Judge’s findings and recommendation.
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