Myers v. Wilcher

Filing 6

ORDER ADOPTING 4 Report and Recommendations, DISMISSING Petitioner's 2254 petition without prejudice. Petitioner is also not entitled to a Certificate of Appealability, rendering moot any request for in forma pauperis status on appeal. Signed by Chief Judge J. Randal Hall on 05/07/2018. (maa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
FREDERICK LEBURN MYERS,
Petitioner,

)
CV418-083

)
JOHN WILCHER, Sheriff,

Respondent.
ORDER

Frederick Leburn Myers filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254, challenging various defects in his state criminal
case. Doc. 1. The Court recommended dismissal of his petition, given

that his "state criminal case remains open, though well aged," with an
"active

docket" including "competency

evaluations, evidentiary

hearings, and the withdrawal of counsel [that] have taken their toll on

the expedient resolution of the case." Doc. 4 at 1 (citing State v. MyerSy
CRl5-0463 (Chatham County Super. Ct.)); see attached (docket sheet).
Myers disputes that characterization, arguing that "only one hearing
has been held in over 40 months" and that, contrary to what has been

memorialized on the public docket, no trial date has ever been set.

Doc. 5(objections to report and recommendation) at 3.

Regardless, Myers does not dispute that his criminal prosecution
is indeed still ongoing, and that he seeks federal habeas relief under §
2254 both without first receiving any final state court "judgment" and

without pursuing any form of state habeas relief. Doc. 5>' see 28 U.S.C.

§ 2254 (the section applies only to prisoners held "in custody pursuant
to the judgment of a State court" and "shall not be granted unless it
appears that the applicant has exhausted the remedies available in the

courts of the [convicting] State.")(emphasis added). His § 2254 petition
thus is DISMISSED without prejudice as it is both premature and
unexhausted.

Myers also argues that his petition should have been evaluated
under 28 U.S.C. § 2241, which does not require a final state court

judgment. Doc. 5,* see Hugkes v. Att'y Gen. ofFla., ^11 F.3d 1258, 1261"
62 (llth Cir. 2004) (pretrial detainees alleging that their continued
detention violates the constitution may pursue habeas relief under

§ 2241, as they are not "in custody pursuant to the judgment of a State
court" within the meaning of § 2254). It does, however, stiU require
exhaustion. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)(both § 2254
and § 2241 petitions "require a petitioner to fully exhaust state

remedies")?' Thomas v. Crosby, 371 F.3d 782, 812 (llth Cir. 2004)
(Tjoflat, J., concurring) ("Among the most fundamental common law
requirements of § 2241 is that petitioners must first exhaust their state

court remedies.")^ see also Santiago-Lugo v. Warden, 785 F.3d 467, 475

(llth Cir. 2015) (noting that the judicially created exhaustion
requirement under § 2241 is not jurisdictional, but remains a

prerequisite to pursuing habeas relief). And Myers admits that he has
not filed a state habeas petition challenging his pre-trial detention.

Doc. 1 at 2-05 Harvey v. Corbin, 2011 WL 4369828 at * 2(S.D. Ga. Aug.
12, 2011) (petition unexhausted where petitioner "has not alleged, and
there is nothing in the record to suggest, that he filed a state habeas

petition challenging his pre-trial detention.").

Therefore, in the

alternative, his petition must still be DISMISSED without prejudice so
that he may exhaust his available state remedies.i

1 Myers also disputes that he is proceeding pro se in the underlying criminal case.
The state docket reflects that he has retained counsel but is still classed as

proceeding pro se. See attached (state criminal docket). His status is inapposite to
his failure to exhaust his administrative remedies, but does further underscore that

if his case is not moving along fast enough for his hking he has counsel who can
either move it forward, seek pretrial habeas relief on his behalf, or file a request for
a writ of mandamus from the Supreme Court to get it moving. See O.G.G.A. § 9-620.

After a careful, de novo review of the file, the Court concurs with

the Magistrate Judge's Report and Recommendation. Accordingly, the

Report and Recommendation of the Magistrate Judge is ADOPTED as
the opinion of the Court and petitioner's 28 U.S.C. § 2254 petition is
DISMISSED.

Petitioner is also not entitled to a Certificate of

Appealability, rendering moot any request for in forma pauperis status
on appeal.

ORDER ENTERED at Augusta, Georgia, this

day of May,

2018.

, CHIEF JUDGE
UNITED STATES DISTRICT COURT
EBBRN DISTRICT OF GEORGIA