Holmes, Sr. v. Freesemann

• Court: District Court, S.D. Georgia
• Decided: March 15, 2024
• Docket: 4:24-cv-00030
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

KETRON KENNETH ) HOLMES, SR.., ) Petitioner, v. CV424-030 JUDGE PENNY HAUS FREESEMANN, ) Respondent. ORDER Before the Court is the Magistrate Judge’s February 12, 2024

Report and Recommendation, doc. 5, to which objections have been filed, docs. 6, 7, 8. Petitioner's “response” to the Report and Recommendation, which the Court construes as an objection, does not dispute the Magistrate Judge’s finding that Petitioner has not exhausted available state remedies. See generally doc. 6; see also doc. 5

at 3-4. The Court, therefore, proceeds to consider his formal objections. Docs. 7, 8. Holmes objects to the Magistrate Judge’s recommendation that his habeas petition, pursuant to 28 U.S.C. § 2241, be dismissed as

unexhausted. Doc. 7. He asserts that he has, in fact, exhausted

available state remedies and that he is deprived of access to state

remedies. Jd. at 1. That assertion is based on an Order from the

Superior Court of Chatham County denying Holmes’ state habeas

petition. Id.; see also id. at 12-13. Holmes also contends that unspecified filings in the Superior Court have not been properly addressed. See id. at 1 (alleging he “was denied access to the courts by respondents due to the failure to reply to letters, motions / petitions|,] etc.”). His Objection does not address the Magistrate Judge’s discussion of whether this Court should abstain from considering Holmes’ Petition, pursuant to Younger v. Harris, 401 U.S. 37 (1971). See generally id.; see also doc. 5 at 4-5. Holmes’ assertion that he has exhausted state remedies is clearly incorrect. His Petition challenged “pretrial detention.” Doc. 1 at 1. The Order attached to his Objection considers challenges to a 2022 conviction. Doc. 7 at 12. To the extent that Holmes seeks federal habeas relief related to his 2022 conviction, he remains free to file a petition pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2254(a) (providing remedy for “a person in custody pursuant to the judgment of

a State court... .”). The attached Order makes clear that “Holmes was

arrested on new charges on January 17, 2023, and remains incarcerated

on those charges as of,” June 2023. Doc. 7 at 12 n. 2. Whatever

proceedings Holmes may have undertaken to challenge his 2022

conviction, those challenges cannot serve to exhaust his challenges to his pretrial detention “on new charges.” See, e.g., Johnson v. Florida, 32 F.4th 1092, 1096 (llth Cir. 2022) (“It is not sufficient merely that

the federal habeas petitioner has been through the state courts, nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made.”). Moreover, even assuming that the Order were relevant to his

current Petition, there is no suggestion that it was appealed. See generally doc. 7. Since exhaustion requires presentation of claims to “the state’s highest court,” Johnson, 32 F.4th at 1096, that Order would

not alter the Magistrate Judge’s conclusion that Holmes failed to exhaust available state remedies. Holmes’ Objection also contends that unspecified filings in the Superior Court have not been properly addressed. See doc. 7 at 1 (alleging he “was denied access to the courts by respondents due to the

failure to reply to letters, motions / petitions[,] etc.”), 4 (complaining that “many of my letter [sic] that was sent to the court and / or all

parties went unanswered.”). It is not clear that the Superior Court has

any obligation “to reply to letters.” To the extent that he contends that procedurally proper filings in the Superior Court are not timely addressed, Georgia law permits him to seek a writ of mandamus. See,

e.g., Jackson v. Walker, 206 F. App’x 967, 969 (11th Cir. 2006). Holmes points to no authority that this Court may excuse his obligation to exhaust state remedies because he believes his filings should be addressed faster. In fact, Jackson expressly held that, where mandamus was available to compel a judicial ruling, the petitioner had

not exhausted available state remedies. Jd. His vague objections to unspecified proceedings in the Superior Court, therefore, do not affect. the Magistrate Judge’s conclusion that he has not exhausted available

state remedies. After a careful de novo review, the Court agrees with the Magistrate Judge’s recommendation. The Court, therefore, ADOPTS the Report and Recommendation, doc. 5, as supplemented above, as its opinion and DISMISSES without prejudice Petitioner’s Petition for

Writ of Habeas Corpus, doc. 1, as unexhausted. See, e.g., 28 U.S.C.

§ 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate judge.”). Applying the Certificate of Appealability (COA) standards, which

are set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (8.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this

stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(¢)(1);

see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving

sua sponte denial of COA before movant filed a notice of appeal). And,

as there are no non-frivolous issues to raise on appeal, an appeal would

not be taken in good faith. Thus, in forma pauperis status on appeal is likewise DENIED. 28 U.S.C. § 1915(a)(8). The Clerk is DIRECTED to CLOSE this case. SO ORDERED this 6 day of ie TE SOUTHERN DISTRICT OF GEORGIA