CIVIL ACTION NO.: 2:19-cv-154
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Presently before the Court are Petitioner Andrew Eckerd's ("Eckerd") 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus and Response to the Court's March 9, 2021 Order. Docs. 1, 6. For the reasons which follow, I RECOMMEND the Court DISMISS without prejudice Eckerd's § 2254 Petition based on his failure to exhaust, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Eckerd in forma pauperis status on appeal and a Certificate of Appealability.
A "district court can only dismiss an action on its own motion as long as the procedure employed is fair . . . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent to dismiss or an opportunity to respond." Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011) (citations and internal quotation marks omitted). A magistrate judge's Report and Recommendation provides such notice and opportunity to respond. See Shivers v. Int'l Bhd. of Elec. Workers Local Union, 349, 262 F. App'x 121, 125, 127 (11th Cir. 2008) (indicating a party has notice of a district court's intent to sua sponte grant summary judgment where a magistrate judge issues a report recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting report and recommendation served as notice that claims would be sua sponte dismissed). This Report and Recommendation constitutes fair notice to Eckerd his suit is due to be dismissed. As indicated below, Eckerd will have the opportunity to present his objections to this finding, and the presiding district judge will review de novo properly submitted objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562, 2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining magistrate judge's report and recommendation constituted adequate notice and petitioner's opportunity to file objections provided a reasonable opportunity to respond).
On December 9, 2019, Eckerd filed a § 2254 Petition attacking criminal proceedings in Glynn County, Georgia, and a motion for leave to proceed in forma pauperis. Docs. 1, 2. The Court denied as moot Eckerd's motion for leave to proceed in forma pauperis, as Eckerd paid the requisite filing fee. Doc. 4. By this same Order, the Court directed Eckerd to notify the Court of his current whereabouts and to address whether he was still "in custody" for purposes of § 2254 because Eckerd had been released from the Georgia Department of Corrections' custody. Doc. 5. Eckerd responded to that Order, stating he was "discharged from" the Department of Corrections' custody on December 15, 2019, but was arrested on January 5, 2020, on a misdemeanor battery charge and was transferred to the Glynn County Detention Center on January 11, 2020, based on probation violations stemming from his 2013 and 2015 Glynn County prosecutions. Doc. 6 at 2.
In his Petition, Eckerd contests his 2013 and 2015 Glynn County prosecutions. Doc. 1 at 1. Eckerd maintains he filed a direct appeal with the Georgia Court of Appeals, but his appeal was returned based on there being no record of his case. Id. at 2. However, Eckerd also states Glynn County Superior Court Judge Stephen Kelley denied his out-of-time appeal. Id. Eckerd filed a state habeas corpus application with the Chattooga County Superior Court in 2017, which has been transferred upon his request, but he has not received a response as of the date of his current § 2254 Petition. Thus, Eckerd asserts his state habeas remedies should be deemed exhausted. Id. at 2-3.
I. Whether Eckerd Exhausted his State Remedies
Eckerd's Petition should be dismissed because he failed to exhaust his available state remedies prior to filing his Petition. Prior to filing a petition for writ of habeas corpus in federal court, a petitioner must first satisfy the requirement that he seek relief from the courts within his state of conviction. That requirement is as follows:
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-
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 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 "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 § 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).(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.
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 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).
Eckerd has not shown this Court should entertain his federal petition. It appears from the face of his Petition he has not exhausted his state remedies prior to the filing of his Petition. In addition, there is no evidence corrective process in the State of Georgia is unavailable. See O.C.G.A. § 9-14-40 et seq.(setting forth Georgia's general habeas proceedings). Judge Kelley denied Eckerd's pro se motion for an out-of-time appeal on November 15, 2017, and advised Eckerd the matter would be more appropriately addressed in a habeas action. Doc. 1-3 at 4. Eckerd executed a notice of appeal to the Court of Appeals of Georgia on November 22, 2017, relating to Judge Kelley's order. Id. at 5. Eckerd's state habeas application was already filed in the Chattooga County Superior Court. Id. at 19. This "notice of appeal" was returned on December 5, 2017, as there was no pending appeal in Eckerd's name and he was to file a notice of appeal in the trial court under O.C.G.A. § 5-6-37. Id. at 21. Eckerd's state application for habeas relief was executed on June 6, 2017, and filed in the Chattooga County Superior Court on August 22, 2017, and he indicated he had not filed an appeal from his conviction. Doc. 1-5 at 3, 4, 9. The state responded on December 11, 2017. Id. at 15. Eckerd filed an amended application on January 9, 2018, and stated he had a pending appeal of his conviction. Id. at 18, 19. The Chattooga County Superior Court transferred Eckerd's petition to the Macon County Superior Court after learning Eckerd had been transferred to Macon State Prison on September 10, 2018. Id. at 40. Eckerd then filed a second amended application on December 21, 2018. Id. at 53. Eckerd attempted to have his state habeas proceedings transferred to where he was housed, and the Chatham County Superior Court Clerk informed him by letter dated January 29, 2019, the transfer request must be initiated in the court where his application was pending. Id. at 61. It appears Eckerd attempted to send paperwork relating to his state habeas proceedings to the Hancock County Superior Court as recently as August 2019. Id. at 65. Eckerd initiated this action just a few months later. Doc. 1.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases:
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.
Indeed, there are no records for Eckerd in either the Georgia Court of Appeals or the Georgia Supreme Court. https://www.gaappeals.us/docket/results all.php?searchterm=Eckerd&submit=Search (last visited Apr. 14, 2021); https://scweb.gasupreme.org:8088/results style.php?searchterm=Eckerd&submit=Search (last visited Apr. 14, 2021). --------
Eckerd has not shown there has been an unreasonable amount of time which has elapsed since the time he filed his state application for habeas corpus relief and the date of the filing of his federal habeas corpus Petition. See Cook v. Fla. Parole & Prob. Comm'n, 749 F.2d 678, 680 (11th Cir. 1985) (noting the exhaustion of state remedies may be excused in a situation where there has been "unreasonable, unexplained delays in acting on a petitioner's motion for state relief[ ]" but finding a three-and-one-half-year delay in the state courts insufficient to excuse exhaustion); cf. Cail v. Smith, CV605-41, 2006 WL 566106, at *4 (S.D. Ga. March 6, 2006) (finding a nine-year plus "standstill" in the petitioner's state case an inappropriate basis upon which to grant the motion to dismiss for failure to exhaust state remedies). Eckerd filed his state habeas application on August 22, 2017, and he executed his §2254 Petition on November 29, 2019, which was filed with this Court on December 9, 2019. Doc. 1 at 19. Barely two years elapsed since Eckerd filed his state habeas application before he filed his § 2254 Petition. What is more, Eckerd filed 28 U.S.C. § 2241 petitions contesting his Glynn County prosecutions prior to filing the instant cause of action, and this Court determined Eckerd had not exhausted his state remedies at that time. R. & R. and Order, Eckerd v. Perry, 2:18-cv-42 (S.D. Ga. May 1 & June 3, 2019), ECF Nos. 17, 18. Eckerd presents nothing revealing he has since exhausted his state remedies.
In addition, Eckerd admits he was released from the Georgia Department of Corrections' custody on December 15, 2019, which was only six days after his § 2254 Petition was filed. Doc. 6 at 2. Eckerd arguably is "in custody" for habeas purposes based on his contention he is housed at the Glynn County Detention Center to answer charges based on alleged violations of his probation stemming from his 2013 and 2015 prosecutions. Id. He states he has been at the Glynn County Detention Center since October 29, 2020, without having been granted a reasonable bond, and he made a motion regarding the same on March 9, 2021. Id. at 1. Not only does Eckerd admit he no longer is under the Georgia Department of Corrections' custody based on the same grounds he raised in his Petition, perhaps rendering his § 2254 Petition moot in addition to being unexhausted, it is clear he cannot have exhausted his state remedies as to his 2020 proceedings. In addition, any claims relating to 2020 proceedings are unrelated to his current Petition.
Regardless, the face of Eckerd's Petition, combined with his recent Response to this Court's Order, demonstrates Eckerd has initiated but not concluded his state-court habeas proceedings, and an unreasonable amount of time has not passed since Eckerd initiated those proceedings. Therefore, Eckerd failed to exhaust his available state remedies prior to filing his § 2254 Petition, and his Petition should be dismissed, without prejudice. II. Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Eckerd leave to appeal in forma pauperis and a Certificate of Appealability. Though Eckerd 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 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, the appeal is not taken in good faith. 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. County 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). An in forma pauperis action is frivolous and 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 issue 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, 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 Eckerd's 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 should likewise DENY Eckerd in forma pauperis status on appeal.
Based on the foregoing, I RECOMMEND the Court DISMISS without prejudice Eckerd's § 2254 Petition based on his failure to exhaust, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Eckerd in forma pauperis status on appeal and a Certificate of Appealability.
Any objections to this Report and Recommendation shall be filed within 14 days of today's date. Objections shall be specific and in writing. Any objection that the Magistrate Judge failed to address a contention raised in the Complaint must be included. Failure to file timely, written objections will bar any later challenge or review of the Magistrate Judge's factual findings and legal conclusions. 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro Dade Police Dep't Station #4, 977 F.3d 1185, 1192-93 (11th Cir. 2020). To be clear, a party waives all rights to challenge the Magistrate Judge's factual findings and legal conclusions on appeal by failing to file timely, written objections. Harrigan, 977 F.3d at 1192-93; 11th Cir. R. 3-1. A copy of the objections must be served upon all other parties to the action.
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 herein. Objections not meeting the specificity requirement set out above will not be considered by the 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.
SO REPORTED and RECOMMENDED, this 14th day of April, 2021.
BENJAMIN W. CHEESBRO
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA