GEORGE HUGHES, PETITIONER-APPELLANT,
v.
JAMES STAFFORD, SHERIFF AND JAILER OF WHITFIELD COUNTY, GEORGIA, RESPONDENT-APPELLEE
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The district court correctly dismissed the federal habeas corpus petition for failure to exhaust state remedies, as the petitioner bypassed an available state appellate procedure.
After his state conviction was affirmed, petitioner filed a state habeas corpus application which was denied on the merits. Instead of seeking a certi…
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PER CURIAM:
In November of 1974, George Hughes was convicted of voluntary manslaughter and sentenced to one year in state prison. After Georgia’s Court of Appeals and its Supreme Court refused to overturn his conviction, Hughes, on April 8, 1976, filed an application for a writ of habeas corpus in the Superior Court of Whitfield County, Georgia. After a hearing, that proceeding apparently lay dormant until 1984 when Hughes moved the state court to act on his habeas corpus application. Promptly thereafter, on December 13, 1984, the state court denied the writ on the merits. On that same date, rather than pursuing the available state procedure to seek a certificate of probable cause from the Georgia Supreme Court, Hughes filed a petition for habeas corpus relief in the federal court. On March 25, 1985, the district court dismissed the petition for failure to exhaust state remedies. We hold that the district court correctly held that Hughes by-passed this available state procedure and failed to exhaust state remedies as required by 28 U.S.C.A. § 2254.
This case is not like those in which we have held that a habeas corpus petitioner, as a requirement for exhaustion of state remedies, need not seek a review to an appellate court where the review is only by writ of certiorari. Buck v. Green, 743 F. 2d 1567 (11th Cir.1984); Smith v. White, 719 F. 2d 390 (11th Cir.1983); Williams v. Wainwright, 452 F. 2d 775 (5th Cir.1971). In those cases, a determination as to whether to permit an appeal turns on whether the decision reviewed conflicts with precedent of other state courts, and whether it involves issues of gravity or great public importance. Ga.Const. Art. 6, § 6, Para. 4; Kyle v. Kyle, 139 So. 2d 885 (Fla.1962). Jurisdiction does not turn on a consideration by the appellate court of the correctness of the lower court’s decision. Frazier v. Southern Ry. Co., 200 Ga. 590, 37 S.E. 2d 774 (1946).
Georgia habeas corpus procedure, however, permits a petitioner to seek a certificate of probable cause from the Georgia Supreme Court within 30 days from the entry of the order denying him relief. O.C. G.A. § 9-14-52. To decide whether to grant or deny a certificate of probable cause, the appellate Court must consider the merits of a petitioner’s individual claim unrelated to conflicts or public importance. Thus, Hughes’ argument concerning the alleged Brady violation would have been considered by the Georgia Supreme Court in deciding whether there was probable cause for an appeal had it been petitioned for relief. This procedure offers an available remedy in the state court which must be pursued for exhaustion purposes. Reed v. Hopper, 235 Ga. 298, 219 S.E. 2d 409 (1975).
Although the exhaustion requirement of section 2254(b) is not jurisdictional, and in rare instances the federal court may deviate from the exhaustion requirement, especially in cases where state remedies ineffectively protect a prisoner’s rights, see Cook v. Florida Parole and Probation Com’n, 749 F. 2d 678, 679-80 (11th Cir.1985), it would be inappropriate to waive the exhaustion requirement where the petitioner has a viable state procedure available at the same time he files his federal petition. Although the eight-year delay in the state’s ruling on Hughes’ habeas corpus petition should not have occurred, the state court nonetheless acted on the merits with prompt speed when Hughes asked for a ruling and there is nothing to indicate he would not have received an expeditious handling of his case by the Georgia Supreme Court. The district court properly dismissed, without prejudice, Hughes’ habeas corpus petition for failure to exhaust state remedies.
AFFIRMED.
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Kennedy v. Hopper, 156 F.3d 1143 (11th Cir. 1998)…-sentenced defendant who has raised an issue in the court of criminal appeals, but abandons it on mandatory certiorari review, has arguably failed to timely exhaust his state remedies, barring his claim from federal review. Cf. Hughes v. Stafford, 780 F. 2d 1580, 1581 (11th Cir.1986) (requiring a Georgia petitioner to seek a certificate of probable cause to appeal before the Georgia Supreme Court to exhaust his state remedies). In light of Kennedy’s failure to assert any of these sub-claims in either the c…
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Hafley v. Sowders, 902 F.2d 480 (6th Cir. 1990)…§ 2254(b) and (c) as to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.") (footnote omitted). This same rule is applied in other circuits as well. See, e.g., Hughes v. Stafford, 780 F. 2d 1580 (11th Cir.1986); Toney v. Franzen, 687 F. 2d 1016, 1021 (7th Cir.1982). The case on which Hafley relies, Tuggle v. Seabold, 806 F. 2d 87 (6th Cir.1986), confirms rather than dispels this well-accepted principle. There, petitioner had presented his…
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Claudio v. Sec'y, Dep't of Corr. (Putnam) (M.D. Fla. 2023)…n him from filing pro se motions, or deny him a right to amend his Rule 3.850 motion. On the contrary, his Rule 3.850 motions remain pending, and there is no discernible delay that would justify excusing a failure to exhaust. See Hughes v. Stafford, 780 F. 2d 1580, 1581 (11th Cir. 1986) (refusing to excuse exhaustion despite an eight-year delay in ruling on a state habeas petition). Although it does appear some of the state court’s orders were returned as undeliverable because Petitioner may not have updated…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kyle v. Kyle, 139 So. 2d 885 (Fla. 1962)
- Williams v. Louie L. Wainwright, 452 F.2d 775 (5th Cir. 1971)
- Cook v. Fla. Parole & Prob. Comm'n, 749 F.2d 678 (11th Cir. 1985)
- Smith v. J.D. White, 719 F.2d 390 (11th Cir. 1983)
- Buck v. Green, 743 F.2d 1567 (11th Cir. 1984)