Bacon v. Georgia State Prison
REPORT AND RECOMMENDATIONS dismissing the 1 Petition for Writ of Habeas Corpus filed by Terry Bacon. Objections to R&R due by 5/22/2017. Signed by Magistrate Judge G. R. Smith on 5/8/17. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
GEORGIA STATE PRISON,
REPORT AND RECOMMENDATION
Petitioner Terry Bacon, convicted in Effingham County, Georgia
Superior Court of murder and kidnapping, petitions to vacate those
convictions under 28 U.S.C. § 2254. Doc. 1. Preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases shows that his petition
must be dismissed.
This is not Bacon’s first rodeo. Two years ago the Court denied his
first § 2254 petition on the merits.
Bacon v. Effingham County ,
No. CV414-255, docs. 6, 10-11 (S.D. Ga. January 23, 2015). Petitioner,
however, fails to note that he’s been here before, see doc. 1 at 2-6, just as
he overlooks the fact that he appealed his original conviction in both
petitions, id. at 2; see also CV414-255, doc. 1 at 2, doc. 6 at 1 (“Bacon
says he took no appeal from his Superior Court of Effingham County,
Georgia conviction, yet the Court has located Bacon v. State , 267 Ga. 325,
325 (1996) (‘The appellants, Terry Bacon, Michnichello Anthony Pryor,
and Jack Winfield Jiles, Jr., were jointly tried and convicted for the
malice murder and kidnaping of James Pickett.’); see also id. at 330
(‘Contrary to Bacon’s only contention, we conclude that the evidence was
sufficient for a rational trier of fact to find him guilty of murder and
kidnaping beyond a reasonable doubt.’); id. (judgment affirmed).”).
Bacon also omits any reference to his two subsequent attempts at habeas
relief masquerading as 42 U.S.C. § 1983 claims. See Bacon v. Williams ,
No. CV414-229, docs. 12, 17-18 (S.D. Ga. Mar. 2, 2015) (dismissing
challenge to state convictions as Heck -barred); Bacon v. Henderson , No.
CV 615-139, docs. 15, 17-18 (S.D. Ga. Aug. 1, 2016) (dismissing challenge
to state convictions as Heck -barred and, alternatively, dismissing for
failure to exhaust a recharacterized habeas petition).
In lieu of appealing this Court’s repeated denials of his habeas
claims, Bacon apparently moved in his long-dormant state criminal case
to have his conviction unwound under an ineffective assistance of
counsel theory. Doc. 1 at 2 (referring to an “effective [ sic ] assistance of
counsel” claim raised in Effingham County criminal case 1E92CR064N,
which was denied on January 19, 2016). That motion failed, and the
Georgia Supreme Court (apparently) declined to review it. Id. (reporting
the “Supreme Court” “denied it” on an “unknown” date). So he’s back,
seeking relief under § 2254, under the theory of “N/A.”
See id. at 6-10
(grounds 1-4 all described as “N/A”). Petitioner also lists, randomly, that
“my counsel raised” (what?), that “I didn’t know” (again, what?), “but
there are unknow[n]” (things? motions? claims? laws? cases? evidence? It
is unclear), and that (something?) “was enter[ed] or imposed legal error
up on the law,” (apparently resulting in?) “miscarriage of justice because
of exculpatory evidence presented to -- grand (jury) [ sic ].” Id. at 12. The
Court is at a loss to parse this fustian, wind-blown language for any
claim to habeas relief, much less a meritorious ineffective assistance of
Regardless, it is clear that Bacon has returned for habeas relief
without authorization from the Eleventh Circuit to do so.
See doc. 1.
“Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider
the application.” 28 U.S.C. § 2244(b)(3)(A). District courts “lack
jurisdiction to decide a second or successive petition filed without [the
court of appeals’] authorization.” Insignares v. Sec’y, Fla. Dep’t of Corr. ,
755 F.3d 1273, 1278 (11th Cir. 2014). Consequently, “[a] district court
must dismiss a second or successive petition, without awaiting any
response from the government, unless the court of appeals has given
approval for its filing.” Smalls v. St. Lawrence , 2012 WL 1119766 at * 1
(S.D. Ga. Feb. 27, 2012).
Because (1) this is Bacon’s second § 2254 petition (and fourth
attempt to attack his conviction in this Court alone), and (2) he never
sought permission from the court of appeals before filing, “this Court is
not at liberty to consider it.”
Id. Accordingly, his petition should be
Applying the Certificate of Appealability (COA) standards set forth
in Brown v. United States , 2009 WL 307872 at * 1-2 (S.D. Ga. Feb.9,
2009), the Court discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule
11(a) of the Rules Governing § 2254 Cases (“The district court must issue
or deny a certificate of appealability when it enters a final order adverse
to the applicant”) (emphasis added). And, as there are no non-frivolous
issues to raise on appeal, an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should likewise be DENIED .
28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED , this 8th day of
UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA
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