IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
ANTONIO HESTER, ) ) Petitioner, ) ) v. ) CV 120-079 ) SHERIFF RICHARD ROUNDTREE, ) ) Respondent. )
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Upon review of the petition, the Court REPORTS and RECOMMENDS Petitioner’s motion to proceed in forma pauperis be DENIED AS MOOT, (doc. no. 2), and this case be DISMISSED without prejudice and CLOSED. I. BACKGROUND According to the petition and publicly available court dockets, Petitioner was indicted on December 17, 2019, for one count each of aggravated child molestation, child molestation, and aggravated sexual battery in the Superior Court of Richmond County, Georgia. (Doc. no. 1, pp. 1-2); State v. Hester, Case No. 2019RCCR001854 (Richmond Cty. Sup. Ct. Dec. 17, 2019), available at http://coc.augustaga.gov (follow “Criminal Search” hyperlink; then search “Hester, Antonio” last visited June 12, 2020) (attached as “Exhibit A”).1 Attorney Grep Gelpi represents Petitioner in his state court proceedings. Hester, Case No. 2019RCCR001854. Petitioner is now detained awaiting trial at Charles B. Webster Detention Facility in Augusta, Georgia. (Doc. no. 1); Hester, Case No. 2019RCCR001854.
Petitioner has filed one pro se motion and two letters with the Richmond County Superior Court, requesting dismissal based on constitutional violations, lack of jurisdiction, and the release of the grand jury minutes and indictment for his review. (Doc. no. 1, pp. 1-3); Hester, Case No. 2019RCCR001854. The docket does not reflect final resolution of his pro se motion and letters. Hester, Case No. 2019RCCR001854. On June 10, 2020, Petitioner filed the instant § 2241 habeas petition, stating three grounds of relief all revolving around his pro se motion and letters regarding constitutional
violations and the unavailability of the indictment and grand jury minutes in his pending criminal charges. (Doc. no. 1.) Although Petitioner states he has filed three appeals, which he states were “denied to the best of [his] knowledge,” it is clear from the underlying state criminal docket Petitioner is referring to his pro se motion and letters, which have not been ruled on. (Doc. no. 1, pp. 1-3); Hester, Case No. 2019RCCR001854. In his current federal petition, Petitioner claims (1) he was irreparably harmed by the failure to produce the indictment and grand jury minutes in his pending criminal case; (2) he was deprived of the
right to a grand jury as evidenced by the lack of availability of the indictment; and (3) he cannot be re-indicted because the alleged initial indictment caused him irreparable harm and violated his constitutional rights. (Id. at 6.)
1See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (explaining court may take judicial notice of another court’s record to establish existence of ongoing litigation and related filings); see also United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts.”) II. DISCUSSION A. Exhaustion The petition should be dismissed because Petitioner has not exhausted state court
remedies. Although there is no exhaustion requirement in the language of 28 U.S.C. § 2241(c)(3), federal courts do not exercise jurisdiction under § 2241 if the issues raised might be resolved by trial on the merits or other available state procedures. Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (explaining exhaustion requirement in § 2241 case). “The exhaustion doctrine of § 2241(c)(3) was judicially crafted on federalism grounds to protect the state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdiction and also to limit federal interference in the state adjudicatory
process.” Turner v. Morgan, No. 3:12cv188/MCR/CJK, 2012 WL 2003835, at *2 (N.D. Fla. Apr. 25, 2012), adopted by, 2012 WL 2003452 (N.D. Fla. June 4, 2012) (citation omitted). Put differently, the exhaustion doctrine prevents “pretrial habeas interference by federal courts in the normal functioning of a state’s criminal processes, absent a petitioner’s exhaustion of his state court remedies.” Id. (citing Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 493 (1973)). Nothing in Petitioner’s filings suggests he has been prevented from asserting his current
claims in his state court proceedings. Indeed, based on the Court’s review of the relevant state docket, there has been no court action since Petitioner filed his pro se motion and letters, and his case has not even been set for trial. Moreover, Georgia case law is clear that, subject to various state procedural requirements, the state habeas courts are available for Petitioner to raise claims concerning the validity of his indictment. See Henderson v. Hames, 697 S.E.2d 798, 801-03 (Ga. 2010); see also O.C.G.A. § 9-14-48(d) (describing procedural requirements for consideration of state habeas claims and setting out cause and prejudice, as well as miscarriage of justice, exceptions). Therefore, the Court concludes Petitioner has not satisfied the exhaustion requirement.
B. Younger Abstention The petition is also due to be dismissed because this Court should not interfere with Petitioner’s ongoing state prosecution. The Supreme Court has repeatedly ruled that “absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 364 (1989) (citing Younger v. Harris, 401 U.S. 37 (1971)). There are three exceptions to this rule that warrant federal court intervention: “(1) there is evidence of state proceedings motivated
by bad faith, (2) irreparable injury would occur, or (3) there is no adequate alternative state forum where the constitutional issues can be raised.” Turner, 2012 WL 2003835, at *2 (citing Younger, 401 U.S. at 45). None of the three exceptions to the Younger doctrine apply to Petitioner’s case. Petitioner fails to make “substantial allegations” with evidentiary support that his state prosecution is motivated by bad faith. See Younger, 401 U.S. at 48-49 (noting allegations in previously decided case granting injunction were “substantial” and explaining bad faith
prosecutions are brought without intention of obtaining conviction or for harassment). Nor has Petitioner made any viable allegation of irreparable injury. See id. at 53-54 (finding irreparable injury if statute of prosecution is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it” or other unusual circumstances require equitable relief).
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
ANTONIO HESTER, ) ) Petitioner, ) ) v. ) CV 120-079 ) SHERIFF RICHARD ROUNDTREE, ) ) Respondent. )
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Upon review of the petition, the Court REPORTS and RECOMMENDS Petitioner’s motion to proceed in forma pauperis be DENIED AS MOOT, (doc. no. 2), and this case be DISMISSED without prejudice and CLOSED. I. BACKGROUND According to the petition and publicly available court dockets, Petitioner was indicted on December 17, 2019, for one count each of aggravated child molestation, child molestation, and aggravated sexual battery in the Superior Court of Richmond County, Georgia. (Doc. no. 1, pp. 1-2); State v. Hester, Case No. 2019RCCR001854 (Richmond Cty. Sup. Ct. Dec. 17, 2019), available at http://coc.augustaga.gov (follow “Criminal Search” hyperlink; then search “Hester, Antonio” last visited June 12, 2020) (attached as “Exhibit A”).1 Attorney Grep Gelpi represents Petitioner in his state court proceedings. Hester, Case No. 2019RCCR001854. Petitioner is now detained awaiting trial at Charles B. Webster Detention Facility in Augusta, Georgia. (Doc. no. 1); Hester, Case No. 2019RCCR001854.
Petitioner has filed one pro se motion and two letters with the Richmond County Superior Court, requesting dismissal based on constitutional violations, lack of jurisdiction, and the release of the grand jury minutes and indictment for his review. (Doc. no. 1, pp. 1-3); Hester, Case No. 2019RCCR001854. The docket does not reflect final resolution of his pro se motion and letters. Hester, Case No. 2019RCCR001854. On June 10, 2020, Petitioner filed the instant § 2241 habeas petition, stating three grounds of relief all revolving around his pro se motion and letters regarding constitutional
violations and the unavailability of the indictment and grand jury minutes in his pending criminal charges. (Doc. no. 1.) Although Petitioner states he has filed three appeals, which he states were “denied to the best of [his] knowledge,” it is clear from the underlying state criminal docket Petitioner is referring to his pro se motion and letters, which have not been ruled on. (Doc. no. 1, pp. 1-3); Hester, Case No. 2019RCCR001854. In his current federal petition, Petitioner claims (1) he was irreparably harmed by the failure to produce the indictment and grand jury minutes in his pending criminal case; (2) he was deprived of the
right to a grand jury as evidenced by the lack of availability of the indictment; and (3) he cannot be re-indicted because the alleged initial indictment caused him irreparable harm and violated his constitutional rights. (Id. at 6.)
1See United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (explaining court may take judicial notice of another court’s record to establish existence of ongoing litigation and related filings); see also United States v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts.”) II. DISCUSSION A. Exhaustion The petition should be dismissed because Petitioner has not exhausted state court
remedies. Although there is no exhaustion requirement in the language of 28 U.S.C. § 2241(c)(3), federal courts do not exercise jurisdiction under § 2241 if the issues raised might be resolved by trial on the merits or other available state procedures. Santiago-Lugo v. Warden, 785 F.3d 467, 475 (11th Cir. 2015) (explaining exhaustion requirement in § 2241 case). “The exhaustion doctrine of § 2241(c)(3) was judicially crafted on federalism grounds to protect the state courts’ opportunity to confront and resolve initially any constitutional issues arising within their jurisdiction and also to limit federal interference in the state adjudicatory
process.” Turner v. Morgan, No. 3:12cv188/MCR/CJK, 2012 WL 2003835, at *2 (N.D. Fla. Apr. 25, 2012), adopted by, 2012 WL 2003452 (N.D. Fla. June 4, 2012) (citation omitted). Put differently, the exhaustion doctrine prevents “pretrial habeas interference by federal courts in the normal functioning of a state’s criminal processes, absent a petitioner’s exhaustion of his state court remedies.” Id. (citing Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S. 484, 493 (1973)). Nothing in Petitioner’s filings suggests he has been prevented from asserting his current
claims in his state court proceedings. Indeed, based on the Court’s review of the relevant state docket, there has been no court action since Petitioner filed his pro se motion and letters, and his case has not even been set for trial. Moreover, Georgia case law is clear that, subject to various state procedural requirements, the state habeas courts are available for Petitioner to raise claims concerning the validity of his indictment. See Henderson v. Hames, 697 S.E.2d 798, 801-03 (Ga. 2010); see also O.C.G.A. § 9-14-48(d) (describing procedural requirements for consideration of state habeas claims and setting out cause and prejudice, as well as miscarriage of justice, exceptions). Therefore, the Court concludes Petitioner has not satisfied the exhaustion requirement.
B. Younger Abstention The petition is also due to be dismissed because this Court should not interfere with Petitioner’s ongoing state prosecution. The Supreme Court has repeatedly ruled that “absent extraordinary circumstances federal courts should not enjoin pending state criminal prosecutions.” New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 364 (1989) (citing Younger v. Harris, 401 U.S. 37 (1971)). There are three exceptions to this rule that warrant federal court intervention: “(1) there is evidence of state proceedings motivated
by bad faith, (2) irreparable injury would occur, or (3) there is no adequate alternative state forum where the constitutional issues can be raised.” Turner, 2012 WL 2003835, at *2 (citing Younger, 401 U.S. at 45). None of the three exceptions to the Younger doctrine apply to Petitioner’s case. Petitioner fails to make “substantial allegations” with evidentiary support that his state prosecution is motivated by bad faith. See Younger, 401 U.S. at 48-49 (noting allegations in previously decided case granting injunction were “substantial” and explaining bad faith
prosecutions are brought without intention of obtaining conviction or for harassment). Nor has Petitioner made any viable allegation of irreparable injury. See id. at 53-54 (finding irreparable injury if statute of prosecution is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it” or other unusual circumstances require equitable relief). Finally, Petitioner’s ongoing state prosecution provides an adequate state forum where any constitutional issues can be raised. Therefore, the Court should abstain from reaching the merits of Petitioner’s § 2241 petition. II. CONCLUSION For the reasons set forth above, the Court REPORTS and RECOMMENDS Petitioner’s motion to proceed in forma pauperis be DENIED AS MOOT, (doc. no. 2), and this case be DISMISSED without prejudice and CLOSED. SO REPORTED and RECOMMENDED this 18th day of June, 2020, at Augusta, Georgia.
LA UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA
Exhibit A Welcome to the a cee docket feature 7 A provided by the offi ——eere of Richmond County miasf Superior Court Cler| cinf Hattie Holmes Sullivan. View case dockets by entering case number, party's name, and/or CSE number. All Once found, click the '+' button : the left of the case number to v U Sup erior Court docket. _] State Court CED) QE Court Officials and . Please click the @ / © buttons to the left of the results to Attorneys . expand/collapse case details Login Here User Name
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| |Case # Defendant Judge Status Filing Court Date © |2001RCCRO0568 HESTER, CARL C. CL 5/1/2001 ANTONIO BROWN JR. ONS biwrowo— Suare PP ANTONIO SLABY cpmenes has Airae ANTONIO WATKINS cpmcews seas Kas P| ANTONIO WATKINS eprocowesr iseaas Pema frome ANTONIO JOLLY Charges oe viererten Offense owas olepowes vee Stage ore Felony/Misdemeandr 1 16-6-4(C) | AGGRAVATED | 10/21/2019 10/30/2019 | F CHILD MOLESTATION Ee ee SEXUAL BATTERY 3 16-6-4(A) | CHILD 10/21/2019 10/30/2019 | F MOLESTATION Attorneys Name Represents GREG |p Proceedings/Events Date Court Date | Type 12/17/2019 INDICTMENT AND CONSOLIDATED MOTIONS AND DEMANDS FOR DISCOVERY, STATEMENTS, SCIENTIFIC REPORTS, AND OTHER ENUMERATED MOTIONS 09:00AM
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