Barber v. Owens et al, No. 1:2013cv00439 - Document 9 (N.D. Ga. 2013)

Court Description: OPINION AND ORDER ADOPTING the 4 Final Report and Recommendation and DENYING the 6 Motion for Writ of Mandamus. IT IS FURTHER ORDERED that Petitioner's Federal Petition for Writ of Habeas Corpus 1 is DENIED and the Petition is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of appealability. Signed by Judge William S. Duffey, Jr on 9/27/2013. (anc)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION EDWARD E. BARBER, III, Petitioner, v. 1:13-cv-0439-WSD BRIAN OWENS, et al., Respondents. OPINION AND ORDER This matter is before the Court on Magistrate Judge Alan J. Baverman s Final Report and Recommendation ( R&R ) [4] regarding Edward E. Barber, III s ( Petitioner ) Federal Petition for Writ of Habeas Corpus ( Petition ) [1], on Petitioner s Objections to the R&R [7], and on Petitioner s Motion for a Writ of Mandamus [6]. I. BACKGROUND1 On February 7, 2013, Petitioner filed his Petition seeking federal habeas relief under 28 U.S.C. § 2241. (R&R at 1; Pet r s Pet. at 1). Petitioner conclusorily asserts he is entitled to relief because his state trial judge was 1 The parties have not objected to the facts set out in the R&R, and finding no plain error in the Magistrate Judge s findings, the Court adopts them. See Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). unconstitutionally and unlawfully in office at the time of Petitioner s alleged criminal trial and, thus, the state court lacked jurisdiction over him. (R&R at 2; Pet r s Pet. at 3). Petitioner states that he raised this claim in 2005 and it has been considered and denied in his state habeas proceedings. (R&R at 2; Pet r s Pet. at 2). He does not provide any further specific information in the record or otherwise to support his claim. On March 8, 2013, the Magistrate Judge recommended that Petitioner s Petition be dismissed without prejudice and that a certificate of appealability be denied because it plainly appears that he is not entitled to relief in this Court under 28 U.S.C. § 2241.2 (R&R at 2-4). Because the relief Petitioner seeks is only available under 28 U.S.C. § 2254, the Magistrate Judge recommended that Petitioner be sent forms for filing a federal habeas petition under that statute. (Id. at 4-5). The Magistrate Judge further noted that Petitioner failed to provide the Court with sufficient information to justify relief, regardless of the form of the petition. 2 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter Rule 4 ) requires the Court to promptly examine habeas corpus petitions and to order summary dismissal of a petition [i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. Accordingly, federal district courts must prescreen and dismiss a frivolous habeas petition prior to any answer or other pleading by the respondents when the petition appears legally insufficient on its face. McFarland v. Scott, 512 U.S. 849, 856 (1994). 2 On April 8, 2013, Petitioner filed objections to the Magistrate Judge s R&R, summarily asserting that the Magistrate Judge did not take judicial notice of facts already adjudicated in this matter. (Pet r s Obj. at 2.) Along with his objections, Petitioner also moved for a writ of mandamus [6] directing the Magistrate Judge to take judicial notice of the binding precedents of the U.S. Supreme Court. (Pet r s Mot. at 1.) II. DISCUSSION After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984). The Court has conducted a de novo review of Petitioner s request for habeas relief. The Court, like the Magistrate Judge, concludes that this action is required 3 to be dismissed because it plainly appears that Petitioner is not entitled to relief in this Court under 28 U.S.C. § 2241, and there are no other asserted grounds for the relief Petitioner requests. The Court further concludes, like Magistrate Judge, that a certificate of appealability should be denied, because Petitioner cannot make a substantial showing that he was denied a constitutional right. The Court finds that Petitioner s motion for a writ of mandamus is wholly without merit. III. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED that Magistrate Judge Alan J. Baverman s Final Report and Recommendation [3] is ADOPTED. IT IS FURTHER ORDERED that Petitioner s Motion for Writ of Mandamus [6] is DENIED. IT IS FURTHER ORDERED that Petitioner s Federal Petition for Writ of Habeas Corpus [1] is DENIED and the Petition is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of appealability. 4 SO ORDERED this 27th day of September, 2013. 5