IVEY v. HATCHER

Filing 17

REPORT AND RECOMMENDATIONS of the U.S. Magistrate Judge that 14 MOTION to Dismiss should be granted and that 1 Petition for Writ of Habeas Corpus should be dismissed. Objections to R&R due by 9/13/2018. Signed by Magistrate Judge G. R. Smith on 8/30/18. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BRIAN JAMES IVEY,
Petitioner,
v.
SHAY HATCHER,
Respondent.

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FILED
Scott L. Poff, Clerk
United States District Court

By jburrell at 12:34 pm, Aug 30, 2018

CV418-057

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REPORT AND RECOMMENDATION
Brian James Ivey was sentenced to life imprisonment by the
Chatham County Superior Court for murder and concealment of death.
His first attempt at federal habeas relief was dismissed for failure to
exhaust his state remedies.

See Ivey v. Washington, No. CV413-013,

docs. 7, 10 & 11 (dismissing for failure to exhaust, although his state
habeas petition had been pending, unresolved, for some seven years at
that point). Five years later, Ivey is back with a habeas claim that is still
unexhausted. Doc. 1 at 3 & 6 (explaining that, since his state habeas
petition (06HC-0031, filed in the Superior Court of Hancock County) was
“continued by deposition” in 2006, he has “never received a final
judg[ ]ment, still pending an answer.”). Given that his state petition had

been “on ice for more than a decade,” without explanation, the Court
ordered Respondent to show cause why the requested relief should not be
granted. Doc. 10 at 1-2. Respondent has answered the Court’s May 16,
2018, order, asking that the case be dismissed for lack of exhaustion
because petitioner’s state habeas case has suddenly (and, according to
Respondent, unrelatedly) surged to life: a June 13, 2018 evidentiary
hearing has come and gone and petitioner has been given 90 days to
prepare his proposed order. Doc. 15 at 2-3 (noting that respondent will
have an additional 30 days to prepare his own proposed order in the
case).
Respondent is correct that “‘even after a long delay has passed, if it
is clear that the state court has awakened to its duties and that visible
progress toward disposition of the case is being made, the federal court
should typically require the petitioner to complete the available state
procedures’” before bringing his claims in a federal habeas petition.
Doc. 15 at 8 (quoting Sloan v. Chapman, 2011 WL 6003831 at *4 (S.D.
Ga. Sept. 13, 2011). Indeed, despite the advanced, still-unexplained age
of petitioner’s state court habeas case, the mere fact of some movement
in those proceedings demonstrates that petitioner has a “viable state
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procedure” available to him. 28 U.S.C. §§ 2254(b)(1)(B); see Hughes v.
Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986) (despite eight-year delay
in adjudication of state habeas petition, exhaustion requirement upheld
where state court eventually adjudicated state habeas petition and
petitioner had a “viable state procedure available”). Petitioner has not
opposed respondent’s motion.
Respondent’s motion to dismiss for failure to exhaust thus should
be GRANTED. 1 This Report and Recommendation (R&R) is submitted
to the district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3.

Within 14 days of

service, any party may file written objections to this R&R with the
Court and serve a copy on all parties.
captioned

“Objections

to

Magistrate

The document should be
Judge’s

Report

and

Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.

1

Should an adverse decision be rendered in petitioner’s state habeas case, of course,
he must seek a certificate of probable cause to appeal to the Georgia Supreme Court.
Stafford, 780 F.2d at 1581; see O.C.G.A. § 9-14-52. Should that decision also be
adverse to him, Ivey may then return to this Court assured that the decade-long
pendency of his state habeas claim will be noted in any timeliness calculation.
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After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. United States, 612 F.
App’x 542, 545 (11th Cir. 2015).
SO REPORTED AND RECOMMENDED, this
August, 2018.

4

30th

day of