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