Davis v. Unknown

Filing 6

OPINION AND ORDER. Davis's objections 4 are OVERRULED, and the R&R 2 as modified herein is ADOPTED as the order of this Court. To the extent necessary, this undersigned concludes that Davis has not met the standard of 28 U.S.C. § 2253( c)(2), and a Certificate of Appealability is DENIED. The Court declines to issue a certificate of appealability because resolution of the issues presented is not debatable. Accordingly, if Davis wants appellate review of this Order, he may seek a certificate of appealability from the Eleventh Circuit Court of Appeals under Federal Rule of Appellate Procedure 22. R. 11(a), R. Governing § 2254 Cases for the U.S. Dist. Cts. The Clerk is DIRECTED to mail a copy of this Order to Davis. Signed by Judge Steven D. Grimberg on 1/6/2025. (bgt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MICHAEL DAVIS,
Petitioner,

Civil Action No.
1:24-cv-00646-SDG

v.
UNKNOWN,
Respondent.
OPINION AND ORDER

This matter is before the Court on the Final Report and Recommendation
(R&R) entered by United States Magistrate Judge Regina D. Cannon [ECF 2], who
recommends that what she construed as Petitioner Michael Davis’s petition for a
writ of habeas corpus under 28 U.S.C. § 2254 be dismissed. As the R&R reasoned,
because Davis’s state habeas corpus petition remains pending in Richmond
County Superior Court, he has not exhausted his state-court remedies as required
by § 2254(b), and his petition is subject to dismissal under Rule 4. 1 Davis filed
objections to the R&R [ECF 4], which undersigned now reviews de novo. 28 U.S.C.
§ 636(b)(1).

1

Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, summary
dismissal of a habeas petition under Rule 4 is proper if the petition and the
attached exhibits plainly reveal that relief is not warranted. McFarland v. Scott,
512 U.S. 849, 856 (1994).
1

In his objections, Davis clarified that his intent was not to file a § 2254 action,
but rather to remove his Georgia habeas proceeding to this Court. 2 Removal,
however, is improper here for two reasons. First, a case may be removed only by
a defendant, which Davis is not for purposes of his state habeas proceeding. 28
U.S.C. § 1441(a). Second, there is no federal subject matter jurisdiction over Davis’s
state habeas proceeding—a matter of Georgia law—because, given that all parties
are Georgia citizens, there is no diversity of citizenship. 28 U.S.C. § 1332(a); Univ.
of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Davis’s petition must
therefore be DISMISSED.
Davis’s objections [ECF 4] are OVERRULED, and the R&R [ECF 2] as
modified herein is ADOPTED as the order of this Court. To the extent necessary,
this undersigned concludes that Davis has not met the standard of 28 U.S.C.
§ 2253(c)(2), and a Certificate of Appealability is DENIED. The Court declines to
issue a certificate of appealability because resolution of the issues presented is not
debatable. Accordingly, if Davis wants appellate review of this Order, he may seek
a certificate of appealability from the Eleventh Circuit Court of Appeals under
Federal Rule of Appellate Procedure 22. R. 11(a), R. Governing § 2254 Cases for
the U.S. Dist. Cts. The Clerk is DIRECTED to mail a copy of this Order to Davis.

2

ECF 4, at 1.
2

The Clerk is further DIRECTED to close this case.
SO ORDERED this 6th day of January, 2025.

Steven D. Grimberg
United States District Judge

3