Harvey v. Corbin

Filing 10

ORDER adopting re 7 Report and Recommendations. Therefore, this case is Dismissed w/o prejudice and Closed. Signed by Judge Dudley H. Bowen on 9/19/11. (cmr)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
2011 SEP l

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DUBLIN DIVISION
REGINALD CHARLES HARVEY,
Petitioner,
V.

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THOMAS H. CORBIN, Sheriff,
Respondent.

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CV 311-074

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ORDER

The above-captioned petition for a writ of habeas corpus, which challenges the
legality of Petitioner's pretrial detention,' is before the Court on two sets of objections by
Petitioner, one relating to the Magistrate Judge's Report and Recommendation ("R&R")
issued August 12, 2011, and one relating to an Order issued by the Magistrate Judge on the
same day.' (Doe. no. 9.) The Court will address each set of objections in turn.
I.

DISCUSSION
A.

Petitioner's Objections to the August 12, 2011 R&R

After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's R&R. The Magistrate Judge found that Petitioner had failed to exhaust available

'Though the instant petition was ostensibly brought pursuant to 28 U.S.C. § 2254, the
Magistrate Judge correctly construed it as a petition brought under 28 U.S.C. § 2241. (S ee
doe. no. 7, pp. 3-4.)
2While Petitioner's objections relate to two separate decisions by the Magistrate
Judge, they were filed as part of the same document. (Doe. no. 59.)

state remedies, and therefore recommended that this case be dismissed without prejudice so
that Petitioner could exhaust his claims in the state court system. doc. no. 7.) Petitioner
objects to being required to exhaust his state remedies, complaining that the state trial court
has not acknowledged the motion to dismiss raising the claims at issue here that he appears
to have filedpro se on or around April 11, 2011. (See doe. no. 1, pp. 49-56; doe. no. 9, pp.
1-5.) Petitioner also objects on the basis of allegedly having been treated unfairly by
Respondent with relation to a bond hearing and a grievance, and he asserts that presenting
his claims at the state level is futile because Respondent, whose actions are the subject of his
claims, "runs the whole court system and county, [and] what he says go[es] . .. ." (

doe.

no. 9, pp. 2-3.)
Upon consideration, the Court finds that Petitioner's objections to the August 12th
R&R lack merit. The fact that Petitioner has not been immediately successful in raising his
claims does not warrant excusing the exhaustion requirement. As explained in the R&R,
proper exhaustion requires that Petitioner afford the state courts a "full and fair opportunity"
to address his claims "by invoking one complete round of the State's established appellate
review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Accordingly, the Court
OVERRULES Petitioner's objections to the R&R.
B.

Petitioner's Objections to the August 12, 2011 Order

Petitioner's remaining objections allege error in the Magistrate Judge's August 12th
Order denying Petitioner's motion to appoint counsel (doe no. 3) and "Motion to Examine
Police Officer Personnel Files" (doe. no. 4). Because these objections relate to
nondispositive matters, the Court will only modify or set aside portions of the Order that are

"clearly erroneous or. . . contrary to law." Fed. R. Civ. P. 72(a); Loc. R. 72.2; Stale y v.
Owens, 367 F. App'x 102, 104 n.1 (11th Cir. 2010) (per curiam); Knox v. Hayes, 933 F
Supp. 1573, 1575-76 & n.2 (S.D. Ga. 1995) Edenfield, J.).
Petitioner's objections to the denial of his motion for appointment of counsel consist
primarily of reassertions of the grounds for appointing counsel that Petitioner raised in his
motion and that the Magistrate Judge soundly rejected, such as the purported need for an
experienced attorney to question witnesses and examine restricted evidence. (See doc. no.
7, pp. 5-6.) These objections lack merit for the reasons set forth in the Magistrate Judge's
August 12th Order. (See doe. no. 6-I, p. 2.) Moreover, appointment of counsel is
inappropriate given the Court's determination that this ease is subject to dismissal without
prejudice, as explained above.
Petitioner's objections to the denial of his "Motion to Examine Police Officer
Personnel Files" are similarly without merit. Therein, Petitioner explains that he "wants to
view [Respondent's] police personnel file to show that Respondent [has] been implicated
previously in wrongdoing," so that he can "expose the truth of [Respondent's] dishonesty and
malicious prosecution . . . and racial prejudice." (Doe. no. 9, pp. 6-7.) However, as
explained in detail by the Magistrate Judge, there is no automatic right to discovery in a
habeas corpus action, and the speculative nature of Petitioner's request for discovery— along
with the fact that this case is subject to dismissal - precludes entitlement to the sought-after
discovery. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) ("A habeas petitioner, unlike
the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary
course."); Arthur v. AlIen, 459 F.3d 1310, 1310-11 (11th Cir. 2006) ("[G]ood cause for
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discovery cannot arise from mere speculation.").
For these reasons, Plaintiff's objections to the Magistrate Judge's August 12th Order
are OVERRULED.
IL CONCLUSION
For the reasons set forth above, Plaintiff's objections to the August 12th Order and
R&R are OVERRULED. Accordingly, the Magistrate Judge's R&R is ADOPTED as the
opinion of the Court. Therefore, this case is DISMISSED without prejudice and CLOSED.
SO ORDERED this /

day of September, 2011, at Augusta, Georgia.

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