Johnson v. Warden of Calhoun State Prison

Filing 13

ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge re 1 Petition for Writ of Habeas Corpus, be dismissed without prejudice and Respondent's 7 MOTION to Dismiss be granted. I further recommend that Johnson be de nied leave to proceed in forma pauperis on appeal and a certificate of appealability. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. ( Objections to R&R due by 7/6/2015). Signed by Magistrate Judge R. Stan Baker on 6/18/2015. (ca)

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

ANTINTO SEANTRE JOHNSON,
Petitioner,

CIVIL ACTION NO.: 2:14-cv-174

v.
WARDEN OF CALHOUN STATE PRISON,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Antinto Johnson (“Johnson”), who is currently housed at Calhoun State Prison
in Morgan, Georgia, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
contesting his convictions obtained in the Appling County Superior Court.

(Doc. 1.)

Respondent filed an Answer-Response and a Motion to Dismiss. (Docs. 6, 7.) Johnson filed a
document which was docketed as a Response to Respondent’s Motion to Dismiss as well as a
Motion to Stay. (Docs. 10, 11.) For the reasons which follow, it is my RECOMMENDATION
that Respondent’s Motion to Dismiss be GRANTED, Johnson’s Petition be DISMISSED,
without prejudice, and this case be CLOSED. It is also my RECOMMENDATION that
Johnson be DENIED a certificate of appealability and leave to proceed in forma pauperis on
appeal.
BACKGROUND
Johnson was found guilty of aggravated battery, in violation of O.C.G.A. § 16-5-24, and
obstruction of a law enforcement officer, in violation of O.C.G.A. § 16-10-24(b), in the Appling
County Superior Court on April 23, 2014. (Doc. 8-1, p. 1.) Johnson was sentenced to 20 years’

imprisonment on the battery charge and to five (5) years’ probation on the obstruction charge, to
be served consecutively. (Id. at p. 60.) On May 19, 2014, Johnson filed a motion for new trial.
(Id. at p. 72.) Johnson filed a brief in support of his motion on September 15, 2014. (Id. at
p. 84.)

The State filed a response on September 30, 2014, and Johnson filed a reply on

October 16, 2014. (Id. at p. 91; Doc. 8-2, p. 7.) As of the date Respondent’s Motion to Dismiss
was filed on February 12, 2015, the Appling County Superior Court had not entered a ruling on
Johnson’s motion. (Doc. 7-1, p. 2.)
DICSUSSION
In his Petition, which was filed on December 1, 2014, Johnson maintains he was not
allowed to provide his account of events on the date of the offenses for which he was convicted.
(Doc. 1, p. 5.) Johnson also objects to the sentence he received, because the other people
involved suffered no consequences from the events giving rise to his convictions. (Id. at p. 8.)
Respondent asserts Johnson’s conviction is not “final” under Georgia law, and he has not
pursued any post-conviction remedies which will be available to him once his conviction is final.
Thus, Respondent avers, Johnson’s petition is due to be dismissed because he has failed to
exhaust his state court remedies. (Doc. 7-1, pp. 2–3.)
I.

Exhaustion
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that–
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.

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28 U.S.C. § 2254(b)(1). “An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C.
§ 2254(c). The United States Supreme Court has held that “a state prisoner must present his
claims to a state supreme court in a petition for discretionary review in order to satisfy the
exhaustion requirement” when discretionary review “is part of the ordinary appellate review
process in the State.” O’Sullivan v. Boerckel, 526 U.S. 838, 839–40, 847 (1999). Therefore, in
order to exhaust state remedies, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” Id. at 845. This exhaustion requirement also extends to a state’s
collateral review process. Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir. 2012);
Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004). Failure to exhaust all claims or to demonstrate
that exhaustion is futile prior to bringing a Section 2254 petition requires that the petition be
dismissed. See Nelson v. Schofeld, 371 F.3d 768, 771 (11th Cir. 2004), superseded by rule on
other grounds as recognized in Hills v. Washington, 441 F.3d 1374 (11th Cir. 2006).
While a state prisoner’s failure to exhaust his remedies in state court ordinarily will result
in the automatic dismissal of his federal habeas petition, this is not always true. See 28 U.S.C.
§§ 2254(b) & (c). First, a court may deny a petition on the merits without requiring exhaustion
“if it is perfectly clear that the applicant does not raise a colorable federal claim.” Granberry v.
Greer, 481 U.S. 129, 135 (1987); 28 U.S.C. § 2254(b)(2). The State may also explicitly waive
the exhaustion requirement.

Hills, 441 F.3d at 1376.

Finally, a court should not require

exhaustion if it has been shown that “there is an absence of available State corrective process,”
or that “circumstances exist that render such process ineffective to protect the rights of the

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applicant.” 28 U.S.C. § 2254(b)(1)(B). The exhaustion requirement should not be applied “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).
Johnson has not shown that this Court should entertain his federal petition. Respondent
has not waived the exhaustion requirement. In addition, there is no evidence that there is no
available corrective process in the State of Georgia. Johnson has filed a motion for new trial
with the Appling County Superior Court, and the latest filing on that motion occurred
approximately one and a half months prior to the filing of this instant Petition. There has not
been an unreasonable amount of time elapsed since the time Johnson filed his motion for new
trial and the date of this Report. However, should Johnson believe the Appling County Superior
Court has delayed unreasonably in ruling on his motion for new trial, Johnson also has available
to him the ability to seek a writ of mandamus from the Georgia Supreme Court to compel the
trial court judge to rule on his motion for new trial. O.C.G.A. § 9-6-20; Jackson v. Walker, 206
F. App’x 969 (11th Cir. 2006). Once Johnson’s motion for new trial is resolved, he may file an
appeal in a Georgia appellate court.
Johnson failed to exhaust his available state remedies prior to filing this Petition, and his
Petition should be dismissed, without prejudice. Respondent’s Motion to Dismiss should be
GRANTED.
II.

Leave to Appeal In Forma Pauperis and Certificate of Appealability
The Court should also deny Johnson leave to appeal in forma pauperis, and he should be

denied a Certificate of Appealability (“COA”). Though Johnson has, of course, not yet filed a
notice of appeal, it would be appropriate to address these issues in the Court’s order of dismissal.
See Thomas v. Crosby, 371 F.3d 782, 797 (11th Cir. 2004) (Tjoflat, J., specially concurring) (“A

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district court may sua sponte grant or deny a COA at the same time it rules on the merits of a
habeas petition or rejects it on procedural grounds. This is arguably the best time for a district
judge to decide this matter because the issues are still fresh in [the district court’s] mind.”);
Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA
before movant filed a notice of appeal); Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not take in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. §
1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective
standard. Busch v. Cnty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
Stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith,
if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,

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537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Johnson’s petition and Respondent’s Motion to Dismiss
and applying the certificate of appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
certificate of appealability. Furthermore, as there are no non-frivolous issues to raise on appeal,
an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should
likewise be DENIED.
CONCLUSION
Based on the foregoing, it is my RECOMMENDATION that Respondent’s Motion to
Dismiss, (doc. 7), be GRANTED. It is also my RECOMMENDATION that Johnson’s petition
for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, (doc. 1), be DISMISSED, without
prejudice, and this case be CLOSED. I further RECOMMEND that Johnson be DENIED
leave to proceed in forma pauperis on appeal and a certificate of appealability. Johnson’s
Motion to Stay, (doc. 11), is DENIED.

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Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. The
Clerk of Court is DIRECTED to serve a copy of this Report and Recommendation upon
Johnson and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of June,
2015.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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