Rufus v. State Board of Pardons and Paroles
Filing
15
ORDER re 14 USCA Order. 13 Order on Motion for Leave to Appeal in forma pauperis is hereby VACATED. The Court finds Petitioner is not entitled to a Certificate of Appealability and Denies 9 MOTION for Leave to Appeal in forma pauperis filed by Michael Alonza Rufus. Signed by Judge Dudley H. Bowen on 12/07/2017. (jlh)
FILED ^
IN THE UNITED STATES DISTRICT COUtl^-
L
FOR THE SOUTHERN DISTRICT OF GEORGIA'"' s
DUBLIN DIVISION
MICHAEL ALONZA RUFUS,
^ q: Ql
*
CLERK
*
Petitioner,
SO
*
5
V.
*
CV 317-037
*
STATE BOARD OF PARDONS AND
*
PAROLES,
*
*
Respondent.
*
ORDER
In
this
case
brought
pursuant
to
28
U.S.C.
§
2241,
Petitioner Michael Alonza Rufus challenged the decision of the
state parole board to deny him consideration for parole.
The
case, however, was dismissed upon a finding that Petitioner had
failed to exhaust his state judicial remedies as required by 28
U.S.C. § 2254.
Judge
pointed
In particular, the United States Magistrate
out
in
his
Report
and
Recommendation
that
Petitioner's Application for a Certificate of Probable Cause
{"CPC") in his state
habeas proceeding
Supreme Court of Georgia.
was pending in the
(See Report and Recommendation of
July 5, 2017, Doc. No. 2, at 4 (citing source omitted).)
Petitioner objected to this determination in the Report and
Recommendation because the CPC application in his state habeas
case had not been ruled
upon within two terms of court as
required by the Georgia Constitution.
§ 9, H II.
See Ga. Const, art. VI,
Thus, Petitioner argued that the Georgia Supreme
Court now lacks jurisdiction to adjudicate the matter, which
necessarily
exhausted.
means
his
state
judicial
remedies
have
been
(See Doc. No. 4, at 4.)
This Court adopted the Report and Recommendation over this
objection.
(See Order of Aug. 11, 2017, Doc. No. 5.)
First,
the Court determined that a CPC application does not fall under
the Georgia Constitution's two-term requirement.
(Id. at 2.)
Second, upon determining that an application for a CPC need only
be decided within a reasonable time after filing, the Court
concluded
that
unreasonable.
overruled,
a
just
(Id.)
and
the
over
one-year
time
period
is
not
Accordingly, Petitioner's objection was
determination
that
Petitioner
had
not
exhausted his state judicial remedies was adopted by this Court.
(Id. at 2-3.)
On October 16, 2017, this Court granted a Certificate of
Appealability pursuant to 28 U.S.C. § 2253(c)(2).
The Court
determined that whether a one-year time period for deciding
whether to grant or deny a CPC application is reasonable is a
matter upon which reasonable jurists could debate.
In granting
the Certificate of Appealability, this Court stated that if a
one-year time period to rule upon an application for a CPC is
unreasonable,
then Petitioner's constitutional right to due
process and to petition this Court for a writ of habeas corpus
has been abridged.
(See Order of Oct. 16, 2017, at 3.)
On October 7, 2017, the Eleventh Circuit Court of Appeals
vacated the Certificate of Appealability issued by this Court,
pointing out that the issue of the reasonableness of a one-year
time period for deciding a CPC is only a ^'debatable procedural
issue."
(11*^^ Cir. Mandate, Doc. No. 14, at 3.)
The Eleventh
Circuit stated that this Court failed to specify an underlying
constitutional claim
by Petitioner on which he
substantial showing of the denial of his rights.
Eleventh
Circuit
remanded
the
case
to
this
has made a
(Id.)
Court
The
for
a
determination of whether this case "involves an underlying error
of constitutional magnitude." See Spencer v. United States. 773
F.3d 1132, 1137 (11'"' Cir. 2014) (cited in ll*"^ Cir. Mandate,
Doc. No. 14.)
In Spencer, the Eleventh Circuit outlined the gatekeeping
requirements of granting a Certificate of Appealability.
The
Spencer court stated: "Even when a prisoner seeks to appeal a
procedural error, the certificate must specify the underlying
constitutional issue."
Id. at 1138 (quoting Slack v. McDaniel.
529 U.S. 473, 484 (2000) ("When the district court denies a
habeas petition on procedural grounds without reaching [the
merits of] the prisoner's underlying constitutional claim, a
[Certificate of Appealability] should issue [only] when the
prisoner shows . . . that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling." (emphasis added)); see also Miller-El
V. Cockrell. 537 U.S. 322, 336 (2003) (''Under the controlling
standard, a petitioner must 'sho[w] that reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that
the issues presented were "adequate to deserve encouragement to
proceed further.'"").
Thus, a Certificate of Appealability
determination
an
requires
overview
of
the
claims
in
the
underlying habeas petition and a general assessment of their
merits.
Miller-El.
537 U.S.
at 336.
The Eleventh Circuit
explained that failure to specify the underlying constitutional
issue
would
result
Appealability.
in
the
vacatur
of
the
Certificate
of
Spencer. 773 F.3d at 1138.
Here, in its Remand Order, the Eleventh Circuit asked this
Court to revisit the issuance of a Certificate of Appealability
in conformity with Spencer and 28 U.S.C. § 2253(c)(2).
No. 14, at 3.)
the
relevant
(Doc.
With this guidance and upon a further review of
law,
this
Court
has
examined
the
underlying
petition and has determined that a Certificate of Appealability
should not issue in this case.
This is because Petitioner has
not shown that the issues raised in his habeas petition are
adequate
to
deserve
encouragement
to
proceed
further.
Accordingly, Petitioner is not entitled to a Certificate of
Appealability in this case.
October
16,
2017
(doc.
Therefore, this Court's Order of
no.
13)
is
hereby
VACATED
and
Petitioner's motion to proceed in forma oauperis on appeal (doc.
no. 9) is DENIED.
ORDER ENTERED at Augusta, Georgia, this
day
of December, 2017.
UNITED STATES DISTRICT JUDGE
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