Miller v. Wilkes et al

Filing 12

ORDER ADOPTING 8 Report and Recommendations, FINDING AS MOOT 6 Motion to Compel, DISMISSING 7 Motion to Amend/Correct, DENYING 10 Motion for Time, OVERRULING Petitioner's objections, DENYING a COA in this case, and CLOSING this civil action. Signed by Chief Judge J. Randal Hall on 02/02/2018. (maa)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

TRACY ANTHONY MILLER,

Petitioner,
CV 117-151

v.

SCOTT WILKES; NATHAN DEAL;
and SAM OLENS,

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. 11).

The Magistrate Judge correctly determined Petitioner fails to state a valid claim for relief
either as a request for a writ of mandamus or as an improper second or successive request for
habeas corpus relief under 28 U.S.C. § 2254. (See doc. no. 8.)

Petitioner does not deny he filed this case as a mandamus action raising all of the
issues identified by the Magistrate Judge, including: (1) a request for federal mandamus

relief against state officials; (2) a non-specific reference to the Americans with Disabilities

Act; (3) complaints about Petitioner's living conditions at Augusta State Medical Prison
against persons not named as Respondents or Defendants; and (4) a successive request for
habeas corpus relief.

Rather, Petitioner complains he should have not been charged a

$400.00 filing fee for a mandamus action because the fee for a habeas corpus case is $5.00.

Also, Petitioner continues to argue his underlying state conviction is unconstitutional. None
of Petitioner's objections have merit.

First, Petitioner chose to attempt to bypass the gate-keeping provisions of the AntiTerrorism and Effective Death Penalty Act of 1996 by styling his case as a request for a writ
of mandamus. (See doc. no. 1, p. 1.) In accordance with the applicable fee schedule, the
Clerk of Court notified Petitioner he owed $400.00 for filing such a mandamus case. (See

doc. no. 2.) Moreover, as the Magistrate Judge explained, although the bulk of Petitioner's
filing related to a request for habeas corpus relief, Petitioner did include other issues in his

petition, that if filed on their own, would have required a $400.00 filing fee. Second, as

Petitioner cannot proceed with his habeas corpus claims in this case, there is no need to allow
additional time to amend those "constitutional challenges," and the Court DENIES the

requests for additional time to amend contained within the objections and in the "Motion for
Time," (doc. no. 10).

Accordingly, the Court OVERRULES Petitioner's objections, ADOPTS the
Report and Recommendation of the Magistrate Judge as its opinion, and DISMISSES

Petitioner's case for failure to state a claim upon which relief may be granted. Petitioner
states no basis for federal mandamus relief. The Court DISMISSES any potential state law

claims without prejudice and denies the request to amend and supplement, (doc. no. 7). The
motion to compel is MOOT. (Doc. no. 6.)

To the extent Petitioner seeks successive federal habeas corpus relief under § 2254,

the case must be dismissed because Petitioner has filed a successive application for a federal

writ of habeas corpus without first obtaining the requisite authorization from the Eleventh

Circuit Court of Appeals. Although Petitioner styled his case as a request for mandamus
relief, in an abundance of caution, the Court addresses the requirements for obtaining a

certificate of appealability ("COA") in a habeas corpus case. A prisoner seeking relief under
§ 2254 must obtain a 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 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.1 Moreover, because 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 informa pauperis. See 28 U.S.C. § 1915(a)(3).
Upon the foregoing, the Court CLOSES this civil action.

SO ORDERED this ^^clay ofFebruary, 2018, at Augusta, Georgia.

J. RANDAL HALL, CHIEF JUDGE

UNITEDJBTATES DISTRICT COURT
I^JUTH^RN DISTRICT OF GEORGIA

*"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.