Moore v. Laughlin et al

Filing 17

ORDER that the motion for a COA is Denied. Signed by Judge Dudley H. Bowen on 8/9/16. (cmr)

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

FILED

U.S. DISTRfCT COURT
■*

nn/

DUBLIN DIVISION

201b AU6 -q P J 12

DAVID TIMOTHY MOORE,

Petitioner,

CLERK
CIVIL ACTION NO.R"!, n
CV

vs.

315-069

WARDEN VANCE LAUGHLIN,
and

GEORGIA

PARDONS AND

BOARD

OF

PAROLES,

Respondent.

ORDER

The Eleventh Circuit recently remanded this case to this

Court for a ruling on Petitioner's motion for a certificate of
appealability ("COA") .
On June 16, 2015, Petitioner David Timothy Moore, a state

prisoner, filed a "Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2241."

Petitioner is serving a life sentence for

an armed robbery committed

in 1987.

In his petition,

he

challenges the process by which the Georgia Board of Pardons
and Paroles handled his parole application.
In the Report and Recommendation issued on October 20,
2015, the United States Magistrate Judge explained that while

Petitioner filed his petition under § 2241,
2241

case.

Rather,

brought under 42

the case

U.S.C.

§

is one

1983.

that

this is not a §
should have been

(S^ Doc.

No.

6,

at

3

("Petitioner's action does not lie in habeas corpus because he

does not seek release and his claims would not necessarily
result in his release." (cited source omitted)).)

Having so

concluded, the Magistrate Judge recommended that the petition
be dismissed under the three-strikes provision of the Prison
Litigation Reform Act.

Petitioner timely filed objections to the Report and
Recommendation.

Upon

consideration

thereof,

this

Court

reiterated that Petitioner was not seeking immediate release
but rather that the Georgia Board of Pardons and Paroles

establish

some

determinations.

type

of

criteria

for

making

parole

Consequently, this Court adopted the finding

that the petition sounded in a § 1983 action and not habeas

corpus.

The Court went on to state that even if the case were

considered

a

habeas

petition

under

28

U.S.C.

§

2254,

Petitioner had not shown a constitutional violation warranting

relief.

The Court adopted the Report and Recommendation

as

its opinion and dismissed the action on December 3, 2015.

On January 4, 2016, Petitioner filed a notice of appeal.
He also moved for a CCA in the case.

This Court entered its

typical FRAP Order, which denied Petitioner the right to
proceed in forma pauperis on appeal and stated that Petitioner
had "failed to make a substantial showing of the denial of a

constitutional or federally protected right." (Doc. No. 14.)

In light of this language, the Clerk of Court terminated the
motion for COA as denied.

See 28 U.S.C. § 2253(c)(2) ("A

certificate of appealability may issue . . .only if the

applicant has made a substantial showing of the denial of a
constitutional right.")

Despite the finding in the FRAP Order that Petitioner in
this case had not made the requisite showing to issue a CCA,
the Eleventh Circuit Court of Appeals remanded this case for

a definitive ruling on his motion for a CCA.

Upon review of the case, this Court doubts that a CCA is
even necessary for this Petitioner to appeal.

The Eleventh

Circuit stated: "With respect to the district court's denial
of Moore's § 2241 petition, a CCA is required before his
appeal may proceed."

(Moore v. Warden. Case No. 16-10056-A

(11"^ Cir. Aug. 4, 2016), Doc. No. 16.)

However, this Court

has determined that this is not a § 2241 case, but a § 1983

case.

A COA is not necessary to appeal in a § 1983 case.^

Nevertheless, to the extent that this Court must definitively

rule upon Petitioner's COA request, the motion for a COA is
hereby

DENIED

because

Petitioner

has

failed

to

make

a

substantial showing of the denial of a constitutional or
federally protected right.

ORDER ENTERED at Augusta, Georgia, this

/ l/fJ>

day of

August, 2016.

UNITED STATES DISTRICT JUDGE

^

This is the reason that this Court used the FRAP Order

for "All civil cases other than Habeas Corpus cases." (See
Doc. No. 14.)