Summary
finding petitioner did not exhaust state remedies when ability to seek writ of mandamus from Georgia Supreme Court remained and motion for new trial was pending for four years
Summary of this case from Marshall v. Coffee Corr. FacilityOpinion
CIVIL ACTION NO.: CV212-194
05-06-2013
WILLIAM H. POWELL, Petitioner, v. STANLEY WILLIAMS, Warden, Respondent.
ORDER
After an independent and de novo review of the entire record, the undersigned concurs with the Magistrate Judge's Report and Recommendation, to which two (2) sets of Objections have been filed. In his Objections, Petitioner William Powell ("Powell") asserts that the lengthy delay by the state court in entering a ruling on his motion for a new trial is sufficient to show that the state remedies process is insufficient. As the Magistrate Judge noted, that is a correct statement of the law. However, Powell fails to show that the state process has been ineffective in this case. The Court notes that Powell's motion for a new trial has been pending in the state court for more than four (4) years. A hearing was to be held on this motion on April 26, 2013, (Doc. No. 37), and a ruling on this motion should be forthcoming relatively soon. Powell can then continue to exhaust his state remedies before filing another 28 U.S.C. § 2254 petition in federal court.
Powell's Objections are overruled. The Magistrate Judge's Report and Recommendation is adopted as the opinion of the Court. Respondent's Motion to Dismiss is GRANTED. Powell's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, is DISMISSED, without prejudice. The Clerk of Court is directed to enter the appropriate judgment of dismissal.
________________________
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA