Wright v. Unnamed Defendant

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge state that Wright's petition should be dismissed without prejudice re 1 Complaint filed by Zicron L. Wright Objections to R&R due by 3/21/2012. Signed by Magistrate Judge G. R. Smith on 3/7/2012. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ZICRON L. WRIGHT,

)

Petitioner,
V.

)

CHATHAM COUNTY,'

Case No. CV412-014

)

Respondent.

REPORT AND RECOMMENDATION
Zicron L. Wright, awaiting prosecution on charges pending in
Chatham County, filed a complaint challenging that prosecution in the
United States District Court for the Northern District of Georgia. (Doc.
1.) That court construed the complaint as a petition brought pursuant to
28 U.S.C. § 2254 and transferred it here. (Does. 2 & 4.) Since it is a
pre-trial petition, it should likely have been treated as a petition pursuant
1 Wright should have named his, present custodian as respondent -- i.e., the
prison's warden. Rumsfeld v. Padilla, 542 U.S. 426, 439-40 (2004) (immediate
custodian is proper respondent); United States v. Figueroa, 349 F. App'x 727, 730 (3rd
Cir. 2009); 39 AM. JUR. 2D HABEAS CORPUS § 93 ("because the writ of habeas corpus
does not act upon the prisoner who seeks relief, but upon the person who holds the
prisoner in what is alleged to be unlawful custody, a district court acts within its
respective jurisdiction within the meaning of the statute as long as the custodian can
be reached by service of process."). It is unclear who his current custodian is, but it is
of little importance here, since his case is due to be dismissed regardless of the
custodian's identity.

to 28 U.S.C. § 2241, but it makes no difference since Wright has clearly
failed to exhaust his available state court remedies as required under both
provisions.
The Court GRANTS his IFP motion (doc. 8) but concludes his
petition must be dismissed. Federal habeas petitions, whether filed
under § 2254 or § 2241 must be exhausted. 28 U.S.C. § 2254(b) (codifying
common law exhaustion requirement); Wilkinson v. Dotson, 544 U.S. 74,
79 2005) (all habeas corpus actions "require a petitioner to fully exhaust
state remedies"); Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004)
(Tjoflat, J., concurring) ("Among the most fundamental common law
requirements of § 2241 is that petitioners must first exhaust their state
court remedies."). Under Georgia law, Wright's claim that he was
arrested without probable cause or a warrant may be raised either during
the state criminal proceedings or collaterally in a state habeas corpus
action. Harvey v. Corbin, 2011 WL 4369828 at * 2 (S.D. Ga. Aug. 12,
2011). As in Harvey, Wright "has not alleged, and there is nothing in the
record to suggest, that he filed a state habeas petition challenging his
pre-trial detention." Id. Therefore, his petition should be DISMISSED
WITHOUT PREJUDICE so that he may exhaust available state

2

remedies.
SO REPORTED AND RECOMMENDED this

day of

March, 2012.

UNI'f]AD'gTATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA