Herrington v. Laughlin
ORDER overruling Petitioner's objections; adopting the 5 Magistrate Judge's Report and Recommendation as the opinion of the Court; therefore, denying as moot Petitioner's 4 Motion for Leave to Proceed in forma pauperis; adding Comm issioner Homer Bryson as a Respondent; dismissing without prejudice for failure to prosecute this petition filed pursuant to § 2254; denying a Certificate of Appealability; determining that Petitioner is not entitled to appeal in forma pauperis; and closing this civil action. Signed by Judge J. Randal Hall on 2/2/2017. (jah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
VANCE LAUGHLIN, Warden, and
HOMER BRYSON, Commissioner,
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. 7).
Petitioner provides no information to change the Magistrate Judge's analysis that the
petition, filed pursuant to 28 U.S.C. § 2254, is due to be dismissed because Petitioner has not
exhausted all of his claims in state court. Only two objections warrant further comment.
First, rather than dispute the state habeas courts are available to him to raise his
ineffective assistance of appellate counsel claims, Petitioner suggests the state courts will not
rule fairly on his petition. As a matter of comity, the state courts generally must be afforded
a fair opportunity to hear claims raised in a habeas corpus petition challenging custody
resulting from a state court judgment. Picard v. Connor, 404 U.S. 270, 275 (1971).
However, "[c]omity does not require that the federal courts decline to exercisejurisdiction in
the face of allegations that the state courts have been presented with the merits of a claim for
habeas corpus relief and have, for one reason or another, refused or been unable to act upon
the claim." St. Jules v. Beto. 462 F.2d 1365, 1366 (5th Cir. 1972).'
In this regard, "[a] federal habeas petitioner need not wait until his state petitions for
relief are exhausted, if the state court has unreasonably or without explanation failed to
address petitions for relief." Hollis v. Davis, 941 F.2d 1471, 1475 (11th Cir. 1991); see also
Reynolds v. Wainwright 460 F.2d 1026, 1027 (5th Cir. 1972) (ruling that an inordinate
delay can, under certain circumstances, excuse exhaustion). However, the Court must be
mindful that "state courts are the principal forum for asserting constitutional challenges to
state convictions." Harrington v. Richter, 562 U.S. 86, 103 (2011). Indeed, the exhaustion
requirement ensures "that state proceedings are the central process, not just a preliminary
step for a later federal habeas proceeding." Id.
Although the record shows it took approximately seven years to rule on Petitioner's
motion for new trial, as Petitioner has not even filed a state habeas petition, there is no
indication of any such delay in state habeas proceedings. Moreover, Petitioner has simply
decided for himself, without ever giving the state habeas court a chance to rule, let alone
providing substantiated evidentiary proof, that his rights will not be analyzed in accordance
with the law. Such conclusory assertions cannot excuse exhaustion.
Second, Petitioner's concern that his federal statute of limitations will expire while he
pursues state habeas relief is unfounded. Pursuant to 28 U.S.C. § 2244(d)(2), the one-year
statute of limitations does not run while a properly filed application for state post-conviction
*Under Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all
Fifth Circuit decisions that were handed down prior to the close of business on September 30,
1981. 661 F.2d 1206, 1209 (11th Cir. \98\) (en banc).
relief or other collateral review is pending in state court. Cramer v. Sec'y, Dep't of Corr.,
461 F.3d 1380, 1383 (11th Cir. 2006). The Supreme Court of Georgia affirmed the trial
court's ruling on the motion for new trial on November 21, 2016. Herrington v. State, 794
S.E.2d 145, 150 (Ga. 2016). Thus, Petitioner's one-year statute of limitations for seeking
federal habeas corpus relief has not yet expired, and Petitioner still has the opportunity to
avail himself of the tolling provision in § 2244(d)(2) by properly filing an application for
state habeas corpus relief in the state courts.
Accordingly, the Court OVERRULES the objections and ADOPTS the Report and
Recommendation of the Magistrate Judge as its opinion. Therefore, the motion to proceed in
forma pauperis is DENIED AS MOOT, (doc. no. 4), Commissioner Homer Bryson is added
as a Respondent, and this petition filed pursuant to § 2254 is DISMISSED without prejudice
for failure to exhaust.
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 there are no nonfrivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner
is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action.
SO ORDERED thi§c^ aay ofFebruary, 2017, at Augusta, Georgia.
HONORABLE J. RANDAL HALL
UNITEDySTATES DISTRICT JUDGE
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