Boggs v. Jump

Filing 6

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Boggs's 1 Petition for Writ of Habeas Corpus, and DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal. It is further RECOMMENDED that th e Court DENY Boggs a Certificate of Appealability and DENY Boggs leave to proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) day s of the date on which this Report and Recommendation is entered. (Objections to R&R due by 7/25/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 7/11/2018. (ca) Modified on 7/11/2018 (ca).

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

JASON JERRARD BOGGS,
Petitioner,

CIVIL ACTION NO.: 2:18-cv-40

v.
NEAL JUMP,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Jason Jerrard Boggs (“Boggs”), who is currently incarcerated at the Glynn
County Detention Center in Brunswick, Georgia, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. 1.) Boggs also filed a Motion for Leave to Proceed in
Forma Pauperis. (Doc. 2.) For the reasons which follow, the Court DENIES Boggs’s Motion
to Proceed in Forma Pauperis. For these same reasons, I RECOMMEND that the Court
DISMISS Boggs’s Petition, DIRECT the Clerk of Court to enter the appropriate judgment of
dismissal and to CLOSE this case, and DENY Boggs leave to appeal in forma pauperis and a
Certificate of Appealability.
BACKGROUND
Boggs filed this Section 2254 Petition on April 12, 2018. (Doc. 1.) In his Petition,
Boggs challenges his May 1, 2013, conviction in the Superior Court of Glynn County, Georgia,
for failure to register. (Doc. 1, p. 2.) Boggs asserts that his conviction was obtained by use of a
coerced confession, that evidence and a confession were used against him in violation of his

constitutional rights, and that his conviction violated the prohibition against double jeopardy and
his privilege against self-incrimination. (Id. at pp. 4–5.)
DISCUSSION
Boggs brings this action under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules
governing Section 2254 petitions:
The clerk must promptly forward the petition to a judge . . . , and the judge must
promptly examine [the petition]. If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.
While complaints in a civil case must contain only “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Federal Rule of Civil Procedure 8(a), petitions for
habeas corpus must “specify all the grounds for relief available to the petitioner” and “state the
facts supporting each ground,” Rule 2 of Rules Governing Section 2254 Cases. In other words,
habeas petitions must contain “‘fact pleading’ as opposed to ‘notice pleading.’” Hittson v.
GDCP Warden, 759 F.3d 1210, 1265 (11th Cir. 2014) (citations and internal quotation marks
omitted). “To properly fact plead, ‘a petitioner must state specific, particularized facts which
entitle him or her to habeas corpus relief for each ground specified. These facts must consist of
sufficient detail to enable the court to determine, from the face of the petition alone, whether the
petition merits further habeas corpus review.’” Arrington v. Warden, GDCP, No. CV 117-022,
2017 WL 4079405, at *2 (S.D. Ga. Sept. 14, 2017) (quoting Adams v. Armontrout, 897 F.2d
332, 334 (8th Cir. 1990)).

Therefore, a habeas petitioner cannot merely levy conclusory

allegations but must support his claims with specific factual detail. Id. (citing James v. Borg, 24
F.3d 20, 26 (9th Cir. 1994)). The requisite review of Boggs’s Petition implicates doctrines of
law which require the dismissal of his Petition.

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I.

Dismissal for Untimeliness
To determine whether Boggs timely filed his petition, the Court must look to the

applicable statute of limitations periods. A prisoner must file a petition for writ of habeas corpus
in federal court within one (1) year. 28 U.S.C. § 2244(d)(1). This statute of limitations period
runs from the latest of four possible dates:
(A) the date on which the judgment of conviction becomes final by the
conclusion of direct review or the expiration of time for seeking such
review;
(B) the date on which the impediment to filing an application by State action in
violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
Id.
Boggs’s conviction became final at the time of his completion of the direct review
process or when the time for seeking such review became final. 28 U.S.C. § 2244(d)(1)(A);
Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000). Boggs states that he was convicted in the
Glynn County Superior Court on May 1, 2013. (Doc. 1, p. 1.) He had a period of thirty (30)
days to file a notice of appeal. O.C.G.A. § 5-6-38(a) (“A notice of appeal shall be filed within 30
days after entry of the appealable decision or judgment complained of[.]”). Boggs states that he
did not file an appeal, (doc. 1, p. 2); accordingly, his conviction became final on May 31, 2013.
Boggs had one year from May 31, 2013, in which to file a timely federal habeas petition. 28
U.S.C. § 2244(d)(1). Boggs, however, did not file this Petition until almost five years later on

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April 12, 2018. (Doc. 1.) Thus, by Boggs’s own admission, he did not comply with the plain
language of Section 2244(d)(1)(A). Moreover, Boggs does not make any claims that would
implicate the limitations periods of Subsections 2244(d)(1)(B)–(D).
The applicable statute of limitations is tolled during “[t]he time . . . which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending.” 28 U.S.C. §2244(d)(2) (emphasis added); Taylor v. Williams,
528 F.3d 847, 849 (11th Cir. 2008). “[A]n application is pending as long as the ordinary state
collateral review process is ‘in continuance’– i.e., ‘until the completion of’ that process. In other
words, until the application has achieved final resolution through the State’s post-conviction
procedures, by definition it remains ‘pending.’” Carey v. Saffold, 536 U.S. 214, 219–20 (2002)
(citations omitted). A petitioner should be mindful that “once a deadline has expired, there is
nothing left to toll. A state court filing after the federal habeas deadline does not revive” the
statute of limitations period applicable to section 2254 petitions. Sibley v. Culliver, 377 F.3d
1196, 1204 (11th Cir. 2004) (citation omitted); see also Alexander v. Sec’y, Dep’t of Corr., 523
F.3d 1291, 1294 (11th Cir. 2008) (a state court motion for post-conviction relief cannot toll the
federal limitations period if that period has already expired). Boggs readily admits that he did
not file any state habeas petition or other application for collateral review. (Doc. 1, p. 2.) Thus,
he is not entitled to statutory tolling.
Equitable tolling of the statute of limitations is also unavailable to Boggs. A petitioner
seeking equitable tolling must establish “that he has been pursuing his rights diligently” and “that
some extraordinary circumstance stood in his way” which prevented him from timely filing his
§ 2254 petition. Lawrence v. Florida, 549 U.S. 327, 335 (2007) (citing Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Equitable tolling is “an extraordinary remedy that must be applied

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sparingly,” and a petitioner must present a “truly extreme case.” Holland v. Florida, 539 F.3d
1334, 1338 (11th Cir. 2008), overruled on other grounds by Holland v. Florida, 560 U.S. 631
(2010). “‘The burden of establishing entitlement to this extraordinary remedy plainly rests with
the petitioner.’” Id. (quoting Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002)).
Again, Boggs admits that he did not take any action to pursue his rights before filing this
Petition. (Doc. 1, p. 2) Moreover, he has not demonstrated some extraordinary circumstance
that prevented him from filing his Petition in the nearly five years following his conviction.
For all of these reasons, the Court should DISMISS Boggs’s Section 2254 Petition as
untimely.
II.

Dismissal for Failure to Exhaust State Court Remedies
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.

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

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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)
(quoting Harbison v. Bell, 556 U.S. 180, 189–90 (2009)); 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 even 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. 28 U.S.C. § 2254(b)(3); Hills, 441 F.3d at 1376 (citations omitted).
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 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)
(citations omitted).
Boggs has not shown that this Court should entertain his federal petition. Respondent has
not waived the exhaustion requirement. In addition, Boggs fails to present evidence that there is

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no available corrective process in the State of Georgia. However, Boggs readily admits that he
has not pursued any state corrective process. (Doc. 1, p. 2.) He states that he did not file any
appeal or state habeas corpus petition regarding his conviction. (Id.) Therefore, by Boggs’s own
admission, he failed to exhaust his available state remedies prior to filing this Petition.
Consequently, in the even the Court does not find Boggs’s Petition untimely, the Court
should his Petition DISMISS his Petition without prejudice for his failure to exhaust his state
remedies prior to filing this Petition.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Boggs leave to appeal in forma pauperis. 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. County 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). 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). As there are no
non-frivolous issues for Boggs to raise on appeal, an appeal would not be taken in good faith.
Thus, the Court should DENY Boggs in forma pauperis status on appeal.

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Additionally, Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it issues a final order adverse
to the applicant.” (emphasis added). 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.” MillerEl v. Cockrell, 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 Boggs 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 Boggs’s Petition 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 Boggs the issuance of a Certificate of Appealability.
If the Court adopts this recommendation and denies Boggs a Certificate of Appealability, Boggs
is advised that he “may not appeal the denial but may seek a certificate from the court of appeals

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under Federal Rule of Appellate Procedure 22.” Rule 11(a), Rules Governing Section 2254
Cases in the United States District Courts.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Boggs’s Petition for
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, (doc. 1), and DIRECT the Clerk of
Court to CLOSE this case and enter the appropriate judgment of dismissal.

I further

RECOMMEND that the Court DENY Boggs a Certificate of Appealability and DENY Boggs
leave to proceed in forma pauperis on appeal. The Court DENIES Boggs’s Motion for Leave to
Proceed in Forma Pauperis, (doc. 2).
The Court ORDERS any party seeking to object to this Report and Recommendation 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. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Boggs.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of July, 2018.

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

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