Davis v. McLaughlin

Filing 6

ORDER directing Petitioner to notify the Court within twenty-one days whether he intended to file a federal habeas petition or rather filed an application for a certificate of probable cause to appeal in the wrong court. Signed by Magistrate Judge Brian K. Epps on 12/15/2016. (maa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
TIMOTHY DAVIS,
Petitioner,
v.
GREGORY MCLAUGHLIN
Respondent.

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CV 116-207

ORDER
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Petitioner, currently incarcerated at Macon State Prison in Oglethorpe, Georgia, filed this
§ 2254 petition along with an application to proceed in forma pauperis (“IFP”) in the Northern
District of Georgia on December 1, 2016. (Doc. nos. 1, 2.) Petitioner seeks to challenge the
Superior Court of Macon County’s Order of November 4, 2016 in 2014-CV-130 denying his
petition for a writ of habeas. (Doc. no. 1, p. 1.) On December 14, 2016, Judge Alan J.
Baverman transferred the case to this Court as Petitioner was convicted in Richmond County.
(Doc. no. 3.)
It appears from both Petitioner’s § 2254 petition and IFP application Petitioner did
not intend to file a federal habeas petition but rather an Application for a Certificate of
Probable Cause to Appeal with the Supreme Court of Georgia. Indeed, Petitioner labels his
petition “In the Supreme Court of Georgia” and his IFP application “Georgia Supreme
Court,” and he titles his petition “Application for a Certificate of Probable Cause to Appeal.”
(See doc. nos. 1, 2.) As his relief, he asks the “Supreme Court of Georgia [to] grant his

Application for Certificate of Probable Cause to Appeal.” Thus, it does not appear Petitioner
is seeking federal habeas relief at this time.
Accordingly, the Court ORDERS Petitioner to notify the Court within twenty-one
days whether he intended to file a federal habeas petition or rather filed an application for a
certificate of probable cause to appeal in the wrong court. If Petitioner did intend to file an
application for a certificate of probable cause to appeal, then he may voluntarily dismiss the
present petition without prejudice and seek relief in the proper court. If no response is timely
received from Petitioner, the Court will presume he desires to have this case voluntarily
dismissed and will recommend dismissal of this petition without prejudice.
SO ORDERED this 15th day of December, 2016, at Augusta, Georgia.

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