Smith v. Tatem

Filing 34

ORDER ADOPTING the Magistrate Judge's 25 Report and Recommendation. Smith's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. 2254 is DENIED. The Clerk of Court is directed to enter the appropriate judgment of dismissal. Signed by Chief Judge Lisa G. Wood on 11/15/2013. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

MORRIS E. SMITH,
Petitioner,
:

V.

CIVIL ACTION NO.: CV213-053

CLAY TATEM,
Respondent.

ORDER
After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Petitioner
Morris Smith ("Smith") filed two (2) Objections. In his Objections, Smith contends that
the Court should have decided the claims regarding the 911 call on the merits. Smith
also contends that the Court should stay these proceedings while he exhausts claims in
the state court.
Smith presents nothing indicating that the Magistrate Judge's analyses and
conclusions of law are in error. Smith's claims of ineffective assistance of counsel and
his claim regarding the admission of the 911 call during the trial of this case are, as the
Magistrate Judge noted, entitled to deference because the state courts deciding these
issues did not unreasonably determine the facts or apply the law presented. As for
Smith's request for a stay and abeyance, such a request is denied.

AO 72A
(Rev. 8/82)

Before bringing a § 2254 habeas petition in federal court, a petitioner must
exhaust all state court remedies that are available for challenging his conviction, either
on direct appeal or in a state post-conviction motion. 28 U.S.C. §§ 2254(b) and (c).
When a federal habeas petition raises a claim that has not been exhausted in state
proceedings, the district court ordinarily must either dismiss the petition, "leaving the
prisoner with the choice of returning to state court to exhaust his claims or of amending
or resubmitting the habeas petition to present only exhausted claims to the district
court[,]" Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1351 (11th Cir. 2004) (internal
citation and punctuation omitted), or grant a stay and abeyance to allow the petitioner to
exhaust the unexhausted claim. See shines v. Weber, 544 U.S. 269, 277-79 (2005).
"[W]hen it is obvious that the unexhausted claims would be procedurally barred in state
court due to a state-law procedural default, [the district court] can forego the needless
'judicial ping-pong' and just treat those claims now barred by state law as no basis for
federal habeas relief." Kelley, 377 F.3d at 1351 (punctuation in original). The
unexhausted claims should be treated as if procedurally defaulted. A petition is "due to
be denied with prejudice [if] there are no state remedies left to exhaust and all of the
claims are either meritless or procedurally defaulted[.]" Chambers v. Thompson, 150
F.3d 1324, 1326 (11th Cir. 1998).
The majority of Smith's claims raised in this petition, even if they were not
exhausted, would be procedurally defaulted under Georgia law. (Doc. No. 25, pp. 410). Accordingly, granting a stay in these proceedings while Smith exhausted his
claims in state court would be to engage in a "needless" game of "judicial ping-pong."
Kelley, 377 F.3d at 1351.

2
AO 72A
(Rev. 8/82)

Smith's Objections are overruled.

The Magistrate Judge's Report and

Recommendation is adopted as the opinion of the Court. Smith's petition for writ of
habeas corpus, filed pursuant to 28 U.S.C. § 2254, is DENIED. The Clerk of Court is
directed to enter the appropriate judgment of dis ssal.
SO ORDERED, this __day
__

, 2013.

LISA GØDBEY WOOD, CHIEF JUDGE
UNIT STATES DISTRICT COURT
SOUtHERN DISTRICT OF GEORGIA

AO 72A
(Rev. 8/82)

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