Stone, Jr. v. Hooks et al

Filing 23

ORDER granting 22 Motion to change on the respondents. The Clerk is directed to change "Brad Hooks" to "Shawn Emmons." The Court overrules Petitioner's objections; adopts the 19 Report and Recommendations; dismisses R espondent GA Board of Pardon and Parole; grants 9 Motion to Dismiss the petition as untimely and unexhausted; enters a final judgment in favor of Respondent Emmons; and denies a COA in this case. The Court closes this civil action and directs the Clerk to enter final judgment in favor of Respondents. Signed by Judge J. Randal Hall on 12/10/2015. (thb) Modified on 12/10/2015 (thb).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

CARL W. STONE, JR,
Petitioner,
CV 115-028

v.

BRAD HOOKS, Warden, and GA
BOARD OF PARDONS AND PAROLE,

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. 21).

The

Magistrate Judge recommended denying the petition filed pursuant to 28 U.S.C. § 2254 because

the claims were untimely or unexhausted. (Doc. no. 19.) Petitioneronly objects to the portion of
the R&R recommending dismissal of his 2014 parole denial claim for failure to exhaust state
remedies. (Doc. no. 21, pp. 2-3.)

Based on the scant information then available, the Magistrate Judge found that, although

Petitioner had prepared a mandamus petition challenging the parole denial, he failed to

successfully commence the case and thus never received a ruling on the merits in the Superior
Court of Fulton County, Georgia. Now for the first time, Petitioner attached to his objections an

August 17, 2015 Order from the Fulton County Superior Court rejecting the petition for filing
because it failed to raise any justiciable issue of law or fact. The Superior Courtdid so pursuant

to O.C.G.A. § 9-15-2(d), which provides for screening and rejection of meritlesspro se filings in
this manner. As this code section explains, "[a]n order denying filing shall be appealable in the
same manner as an order dismissing an action."

Pursuant to O.C.G.A. § 5-6-35, a prisoner must file an application for discretionary
appeal to the Georgia Supreme Court within thirty days of the entry of the order, decision, or

judgment. See O.C.G.A. § 5-6-35(d); O.C.G.A. § 9-6-28(b); Jones v. Townsend, 267 Ga. 489,

490 (Ga. 1997) (finding that plaintiffs failure to comply with discretionary appeal procedure

required dismissal). Here, the Superior Court rejected Petitioner's mandamus petition for filing

on August 17, 2015. (Doc. no. 21, p. 8.) Petitioner had until September 16, 2015, to seek an

application for appeal to the Georgia Supreme Court. See O.C.G.A. § 5-6-35(d); O.C.G.A. § 96-28(b). Petitioner did not file an appeal, and claims as an excuse that he did not receive a copy

of the August 17 Order until forty-two days after its entry, on September 28, 2015. (Doc. no. 21,

p. 8.) Even if this is true, Petitioner has neither alleged nor proved that he has since attempted to
file an application for appeal and sought an excusal from the thirty-day deadline. Consequently,
Petitioner is in default and has failed to exhaust state remedies. O'Sullivan v. Boerckel 526 U.S.

838, 839 (1999) ("Although a state prisoner has no right to review in the Illinois Supreme Court,

he does have a 'right... to raise' his claims before that court. That is all § 2254(c) requires.");

Pope v. Rich, 358 F.3d 852, 853 (11th Cir. 2004) (holding that petitioner failed to exhaust state

remedies by failing to apply for certificate of probable cause to appeal denial to Georgia

Supreme Court); Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) ("[Prisoners must...

invok[e] one complete round of the State's established appellate review process . . . including

review by the state's court of last resort, even if review in that court is discretionary.") Because
Petitioner has failed to exhaust state remedies, dismissal of his habeas petition is required.
Finally, dismissal would be appropriate even if Petitioner somehow revived his defaulted

state mandamus action and convinced the Georgia Supreme Court to consider an untimely
application for discretionary appeal. The United States Supreme Court has held that a "state

prisoner must give the state courts an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition." O'Sullivan, 526 U.S. at 842 (emphasis added);
see also Reedman v. Thomas, 305 F. App'x 544, 546 (11th Cir. 2008) ("Generally, when a

petitioner has failed to exhaust state remedies, the district court should dismiss the petition
without prejudice to allow exhaustion.")
As a matter of procedure, Petitioner has filed an unopposed motion to change a

respondent, claiming that Mr. Shawn Emmons has replaced Respondent Hooks as Petitioner's
custodian.

(Doc. no. 22.)

Because Rule 2(a) of the Rules Governing Section 2254 Cases

requires Petitioner name as Respondent the state officer who has custody, the Court GRANTS

Petitioner's motion. The Clerk is directed to change "Brad Hooks" to "Shawn Emmons."

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the Report
and Recommendation of the Magistrate Judge as its opinion, DISMISSES Respondent GA
Board of Pardons and Parole from this case (doc. no. 10), GRANTS Respondents' motion to

dismiss the petition as untimely and unexhausted (doc. no. 9), and ENTERS a final
judgment in favor of Respondent Emmons.

A prisoner seeking relief under 28 U.S.C. § 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."
Proceedings.

Rule 11(a) to the Rules Governing Section 2254

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

the requisite showing. Accordingly, the Court DENIES a COA in this case.1 Moreover,
because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in

good faith. Accordingly, 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 and DIRECTS the Clerk to
enter final judgment in favor of Respondents.

SO ORDERED this /P day ofDecember, 2015, at Augusta, Georgia.

HONORABLE J. RANDAL HALL

TOITEpXTATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

1 "If the 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.