Luke v. The State of Georgia et al

Filing 7

ORDER overruling Petitioner's objections; adopting the Report and Recommendation of the Magistrate Judge as the opinion of the Court; denying as moot the Petitioner's 2 Motion for Leave to Proceed in forma pauperis; dismissing without pre judice the instant petition brought pursuant to 28 U.S.C. § 2254; denying a Certificate of Appealability; determining that the Petitioner is not entitled to appeal in forma pauperis; and closing this civil action. Signed by Judge J. Randal Hall on 08/06/2014. (jah)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

AARON LUKE,
Petitioner,
CV 114-141

THE STATE OF GEORGIA, et al.;
GOVERNOR NATHAN DEAL;
RICHMOND COUNTY SUPERIOR

COURT; ASHLEY WRIGHT, District

Attorney, Augusta Judicial Circuit; and
MICHAEL N. ANNIS, Superior Court
Judge, Augusta Judicial Circuit, et al.,
Respondents.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 6).

The Magistrate Judge recharacterized the initial filing in this case from a civil rights
complaint filed pursuant to 42 U.S.C. § 1983 to a petition seeking federal habeas corpus

relief filed pursuant to 28 U.S.C. § 2254. (See doc. no. 3.) The Magistrate Judge also

recommended denying the motion to proceed in forma pauperis ("IFP") as moot and
dismissing the petition without prejudice because Petitioner has not exhausted his state
court remedies. (See id.)

Petitioner's objections are mainly a restatement of information already analyzed
by the Magistrate Judge. Petitioner does not contest the basis for the Magistrate Judge's
recharacterization of the initial filing as a petition for habeas corpus relief, i.e., he seeks
to challenge the legality of his state criminal convictions. In fact, he reiterates, both in

his objections and a separate filing docketed as a "Notice of Intent to challenge the
State's law" after entry of the recommendation for dismissal, that his convictions are
"illegal" and "void." (See, e.g.. doc. no. 5, pp. 8, 14; doc. no. 6, pp. 9, 22 & Ex. B, p. 2.).
Nor does Petitioner offer any information contrary to the Magistrate Judge's finding that

he has a pending motion in state court seeking leave to file an out-of-time appeal and that
he has not pursued any collateral proceeding, i.e., state habeas petition, in the courts of

the State of Georgia.1
Rather, he attempts to couch his request for relief as a request for an injunction

immediately overturning his convictions rather than as habeas corpus relief that would
declare his convictions invalid. (Doc. no. 6, pp. 2, 4.) However, as the Magistrate Judge

explained, (doc. no. 3, pp. 2-3), the substance and not the title of Petitioner's filing
controls.

Petitioner has requested habeas corpus relief regardless of whether

characterized as a conspiracy to force Petitioner to plead guilty to fatally defective

charges that resulted in illegal and void convictions or as a request for an injunction to
declare that the charges to which he pled guilty are void. See Nelson v. Campbell. 541
U.S. 637, 643 (2004) (explaining that claims challenging the fact of conviction or

'Petitioner challenges the constitutionality of the state criminal statutes under which he
was convicted, claiming multiple counts to which he pled guilty failed to charge him with a
crime. (See generally doc. nos. 1, 5, 6.) Such challenges may be pursued in state habeas corpus
proceedings. See Kennedy v. Carlton. 757 S.E.2d 46, 47-48 (Ga. 2014) (state habeas corpus
challenge arguing Georgia criminal statute was constitutionally defective as vague and
ambiguous).
2

duration of the sentence "fall within the 'core' of habeas corpus," while claims
challenging the conditions of confinement may be brought in a civil rights action under
42 U.S.C. § 1983); Preiser v. Rodriguez. 411 U.S. 475, 500 (1973) ("[W]e hold today that
when a state prisoner is challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he is entitled to immediate
release . . . , his sole federal remedy is a writ of habeas corpus.").

For the reasons

thoroughly explained by the Magistrate Judge (doc. no. 3, pp. 3-5), Petitioner must
exhaust his state court remedies before seeking federal habeas corpus relief.
Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the

Report and Recommendation of the Magistrate Judge as its opinion, DENIES AS
MOOT Petitioner's motion to proceed IFP (doc. no. 2), and DISMISSES without
prejudice the instant petition brought pursuant to 28 U.S.C. § 2254.

A prisoner seeking relief under § 2254 must obtain a certificate of appealability

("COA") before appealing the denial of his application for a writ of habeas corpus. This
Court "must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant." Rule 11(a) to the Rules Governing Section 2254 Proceedings.
This Court should grant a COA only if the prisoner makes a "substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the

Report and Recommendation, and in consideration of the standards enunciated in Slack v.
McDaniel. 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite

showing. Accordingly, the Court DENIES a COA in this case.2 Moreover, because

2"Ifthe court denies a certificate, the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a)
to the Rules Governing Section 2254 Proceedings.
3

there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good
faith, and Petitioner is not entitled to appeal in forma pauperis.

See 28 U.S.C. §

1915(a)(3).

Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this £g_3ay ofAugust, 2014, at Augusta, Georgia.

HONORABLE J. RANDAL HALL
IITEOCTATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA