Holmes v. State of Georgia

Filing 7

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Holmes' 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, and DIRECT the Clerk to CLOSE this case. I further RECOMMEND th at the Court DENY Holmes a Certificate of Appealability and DENY Holmes leave to proceed in forma pauperis. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered (Objections to R&R due by 12/27/2016). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate. Signed by Magistrate Judge R. Stan Baker on 12/13/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

SCOTT HOLMES,
Petitioner,

CIVIL ACTION NO.: 6:16-cv-148

v.
STATE OF GEORGIA,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Scott Holmes (“Holmes”), who is currently housed at the Tattnall County Jail
in Reidsville, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 1
(Doc. 1.) Holmes also filed a Motion to Proceed in Forma Pauperis. (Doc. 3.) For the reasons
which follow, the Court DENIES Holmes’ Motion to Proceed in Forma Pauperis.

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RECOMMEND that the Court DISMISS Holmes’ Petition without prejudice, DIRECT the
Clerk of Court to CLOSE this case, and DENY Holmes leave to appeal in forma pauperis and a
certificate of appealability.
BACKGROUND
Holmes filed this Section 2254 Petition to contest the ongoing criminal proceedings he is
facing in Tattnall County, Georgia. Holmes states he was arrested on September 13, 2016, based
on charges of trafficking cocaine and other drugs.

(Doc. 1, p. 1.)

Holmes contends his

preliminary hearing was scheduled to take place on October 4, 2016, but the hearing was
cancelled because the arresting officer did not appear. Holmes alleges his preliminary hearing
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The Court DIRECTS the Clerk of Court to correct this cause of action as being a habeas corpus action
brought pursuant to Section 2254 rather than a civil rights action brought pursuant to 42 U.S.C. § 1983.

has not been rescheduled, in violation of his Sixth Amendment rights. (Id. at p. 2.) Holmes
seeks his immediate release from the Tattnall County Jail.
In the amendment to his Petition, Holmes avers his preliminary hearing was rescheduled
for November 4, 2016, and the arresting officer failed to appear once again. (Doc. 4.) However,
another officer testified and gave testimony based on hearsay. Holmes asserts his attorney failed
to object to this officer’s testimony. 2 (Id. at p. 2.)
DISCUSSION
Holmes bring this action under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules
governing Section 2254 petitions:
The clerk must promptly forward the petition to a judge . . ., and the judge must
promptly examine [the petition]. If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.
The requisite review of Holmes’ Petition implicates doctrines of law which require the dismissal
of his Petition.
I.

Dismissal for Failure to Exhaust State Court Remedies
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that–
(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.

28 U.S.C. § 2254(b)(1). “An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right under
2

To the extent Plaintiff’s amendment to his Petition can be construed as a Motion to Appoint Counsel,
the Court DENIES Holmes’ Motion.
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the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C.
§ 2254(c). The United States Supreme Court has held that “a state prisoner must present his
claims to a state supreme court in a petition for discretionary review in order to satisfy the
exhaustion requirement” when discretionary review “is part of the ordinary appellate review
process in the State.” O’Sullivan v. Boerckel, 526 U.S. 838, 839–40, 847 (1999). Therefore, in
order to exhaust state remedies, “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” Id. at 845. This exhaustion requirement also extends to a state’s
collateral review process. Gary v. Ga. Diagnostic Prison, 686 F.3d 1261, 1274 (11th Cir. 2012);
Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004). Failure to exhaust all claims or to demonstrate
that exhaustion is futile prior to bringing a section 2254 petition requires that the petition be
dismissed. See Nelson v. Schofeld, 371 F.3d 768, 771 (11th Cir. 2004), superseded by rule on
other grounds as recognized in Hills v. Washington, 441 F.3d 1374 (11th Cir. 2006).
While a state prisoner’s failure to exhaust his remedies in state court ordinarily will result
in the automatic dismissal of his federal habeas petition, this is not always true. See 28 U.S.C.
§§ 2254(b) & (c). First, a court may deny a petition on the merits without requiring exhaustion
“if it is perfectly clear that the applicant does not raise a colorable federal claim.” Granberry v.
Greer, 481 U.S. 129, 135 (1987); 28 U.S.C. § 2254(b)(2). The State may also explicitly waive
the exhaustion requirement.

Hills, 441 F.3d at 1376.

Finally, a court should not require

exhaustion if it has been shown that “there is an absence of available State corrective process,”
or that “circumstances exist that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b)(1)(B). The exhaustion requirement should not be applied “if

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the state court has unreasonably or without explanation failed to address petitions for relief.”
Hollis v. Davis, 941 F.2d 1471, 1475 (11th Cir. 1991).
Holmes has not shown that this Court should entertain his federal petition. Respondent
has not waived the exhaustion requirement. In addition, Holmes fails to present evidence that
there is no available corrective process in the State of Georgia. In fact, Holmes has not been
convicted on the charged offenses. He has available to him the opportunity to file motions with
the Tattnall County Superior Court should he feel his criminal proceedings implicate his
constitutional rights. Further, should Holmes be convicted on any or all charges he is facing, he
can file a direct appeal with the Georgia Court of Appeals and/or a petition for writ of habeas
corpus with a Georgia state court. For the reasons set forth above, Holmes failed to exhaust his
available state remedies prior to filing this Petition, and the Court should DISMISS his Petition,
without prejudice.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Holmes leave to appeal in forma pauperis, and he should be

denied a Certificate of Appealability (“COA”). Though Holmes has, of course, not yet filed a
notice of appeal, it would be appropriate to address these issues in the Court’s order of dismissal.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, “the district court must issue or
deny a certificate of appealability when it issues a final order adverse to the applicant.”
(emphasis supplied); see also Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies, either before or
after the notice of appeal is filed, that the appeal is not taken in good faith.

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28 U.S.C.

§ 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective
standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v.
United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the
factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v.
Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993).
Stated another way, an in forma pauperis action is frivolous and, thus, not brought in good faith,
if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531
(11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL
307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a Certificate of Appealability is issued.

A Certificate of

Appealability may be issued only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a Certificate of Appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a Certificate of Appealability, a petitioner must
show “that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,

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1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Holmes’ Petition and applying the Certificate of
Appealability standards set forth above, there are no discernable issues worthy of a certificate of
appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability.
Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal would not be
taken in good faith. Thus, the Court likewise should DENY Holmes in forma pauperis status on
appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS without prejudice
Holmes’ Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, (doc. 1), and
DIRECT the Clerk of Court to CLOSE this case. I further RECOMMEND that the Court
DENY Holmes a Certificate of Appealability and DENY Holmes leave to proceed in forma
pauperis. The Court DENIES Holmes’ Motion to Proceed in Forma Pauperis in this Court.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.

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Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Holmes.
SO ORDERED and REPORTED and RECOMMENDED, this 13th day of December,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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