Opinion
3:21-cv-00099-CDL-CHW
03-17-2022
RHONDA REID, Petitioner, v. Commissioner MICHAEL W. NAIL, Respondent.
Proceedings Under 28 U.S.C. § 2254 Before the U.S. Magistrate Judge
ORDER
Charles H. Weigle United States Magistrate Judge
Before the Court is Respondent Michael W. Nail's motion to dismiss this Section 2254 action for failure to exhaust. (Doc. 8). For the following reasons, it is RECOMMENDED that the motion be GRANTED, and that this action be DISMISSED without prejudice.
Because Petitioner Reid is on probation, Nail, the Commissioner of the Georgia Department of Corrections, is the best official capacity Respondent known to the Court. The pending motion to substitute, or to dismiss the improperly named respondents - Greene County and the State of Georgia - is therefore GRANTED. (Doc. 7).
BACKGROUND
Petitioner challenges her April 2012 conviction in the Green County Superior Court on charges of racketeering, O.C.G.A. § 16-14-4, relating to forged or otherwise fraudulent checks. (Doc. 10-2, p. 1). Petitioner received a twenty-year sentence, seven years of which were to be served in prison, with the remainder to be served on probation. (Id.). The record indicates that Petitioner was released on parole in March of 2015. (Doc. 10-4, p. 1).
Following her April 2012 conviction, Petitioner filed a motion for new trial in May 2012 (Doc. 10-3, p. 1), which motion remained pending until April of 2016, when Petitioner voluntarily dismissed the motion. (Doc. 10-5, p. 1). After the dismissal of her motion for new trial, Petitioner did not file a direct appeal. See O.C.G.A. § 5-6-38(a) (“Time for filing notice of appeal”).
Instead, in March 2016, Petitioner with aid of counsel filed a state habeas corpus petition that remains pending in the Green County Superior Court. (Doc. 10-6, p. 1). Petitioner's habeas counsel later withdrew from proceedings. (Doc. 10-8, p. 3; Doc. 10-9, p. 1). According to Respondent, the lower state habeas court has yet to conduct an evidentiary hearing (Doc. 8-1, p. 4) or to enter a dispositive order resolving the case.
Petitioner also, in October 2017, commenced a prior Section 2254 federal habeas action in this Court challenging the same Georgia racketeering judgment. See Reid v. Boyer, 3:17-cv-140. This Court dismissed Petitioner's prior Section 2254 petition for failure to exhaust in July 2018.
FAILURE TO EXHAUST
As explained in Petitioner's prior Section 2254 action, before Petitioner may seek Section 2254 relief from this Court, she must satisfy the exhaustion requirement, meaning that she “must give the state courts an opportunity to act on [her] claims” by “invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 842-45 (1999). 28 U.S.C. § 2243(b)(1)(A).
Petitioner cites the delay in the resolution of her pending state habeas case as grounds for showing an “absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i). The roughly six-year delay to date in the processing of Petitioner's state habeas case is indeed troubling, and caselaw suggests that undue delay may obviate the need for exhaustion, although “[t]he exhaustion requirement is not one to be overlooked lightly.” Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005). Accord Hughes v. Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986) (explaining that a “federal court may deviate from the exhaustion requirement” only in “rare instances”).
For two reasons, and despite the delay in Petitioner's state habeas proceedings, it is recommended that the Court grant Respondent's motion to dismiss for failure to exhaust. First, the delay that Petitioner has encountered so far - a delay due partly, it seems, to Covid-19 disruptions - is comparable in length to delays in other cases where courts have not departed from the exhaustion requirement. See, e.g., Hughes, 780 F.2d at 1581-82 (requiring exhaustion despite an “eight-year delay in the state's ruling on Hughes' habeas corpus petition”).
Second, the delay in the resolution of Petitioner's state habeas case is likely due, at least in part, to the threat of intercession created by Petitioner's decision simultaneously to seek federal habeas relief from this Court in 2017 and 2018 in her prior Section 2254 action. Reid v. Boyer, 3:17-cv-140. To the extent that the state habeas court held its proceedings in abeyance during this Court's deliberations, that delay is “attributable to the petitioner, rather than the state, ” and hence it does not serve as grounds for deviating from the exhaustion requirement. See Sloan v. Chapman, 2011 WL 816789 at *3 (S.D. Ga. 2011) (citing Cook v. Fla. Parole and Prob. Comm'n, 749 F.2d 678, 680 (11th Cir. 1985)). Accordingly, the delay incurred to date, while troubling, does not warrant a departure from the ordinary exhaustion requirement.
In accordance with Hughes, Petitioner may seek to correspond with the state habeas court and “ask[] for a ruling.” Hughes v. Stafford, 780 F.2d 1580, 1581 (11th Cir. 1986). Petitioner may include, with her state habeas correspondence, orders from this Court noting that the state habeas court's six-year delay in resolving Petitioner's state habeas petition is a matter of concern and the petition should be promptly addressed.
CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Respondent's motion to dismiss (Doc. 8) be GRANTED, and that this action be DISMISSED without prejudice based on Petitioner's failure to exhaust.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations with the presiding District Judge WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation. The parties may seek an extension of time in which to file written objections, provided a request for an extension is filed prior to the deadline for filing written objections. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. Failure to object in accordance with the provisions of § 636(b)(1) waives the right to challenge on appeal the district judge's order based on factual and legal conclusions to which no objection was timely made. See 11th Cir. R. 3-1.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.