JOHNSON v. COUNTRYMAN

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HERRON LEE JOHNSON, 	:
:
Petitioner, 	:
:
v. 	: 	Case No. 4:25-cv-236-CDL-AGH
:
Sheriff GREG COUNTRYMAN, 	:
:
Respondent. 	:
__________________________________
ORDER AND RECOMMENDATION
Pro se Petitioner Herron Lee Johnson, a pretrial detainee in the Muscogee
County Jail in Columbus, Georgia, filed a petition for a writ of habeas corpus under
28 U.S.C. § 2241. ECF No. 1. On August 26, 2025, Petitioner filed his first motion to
proceed in forma pauperis which was denied because Petitioner averred that he had
$250 on his books as of August 20, 2025. See ECF No. 9 at 2, 3; ECF No. 12. Petitioner
was then ordered to pay the $5.00 filing fee. 	ECF No. 12. 	Petitioner has now filed
another motion to proceed in forma pauperis. 	ECF No. 13. 	Petitioner attached an
“Official Certificate of Prisoner Account” signed by Sgt. Waters of the Muscogee
County Jail that shows $3.71 in his prisoner trust account. ECF No. 13-1. Because
Petitioner’s “Official Certificate of Prisoner Account” shows he lacks the funds to pay
the filing fee, his motion to proceed in forma pauperis is GRANTED. However, it is
RECOMMENDED that Petitioner’s habeas petition be DISMISSED without
prejudice because he has not exhausted available state remedies and that his
remaining pending motions (ECF Nos. 3, 4, 7, 10) be DENIED as moot. 	It is also
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RECOMMENDED that a certificate of appealability (“COA”) and any motion to
proceed in forma pauperis on appeal be DENIED.
I. 	SCREENING
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that
The clerk must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must promptly examine it.
If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the petitioner.
Rules Governing § 2254 Cases, R. 4.
A 	state 	prisoner 	cannot 	petition 	for 	federal 	habeas 	relief 	without 	first
exhausting his state court remedies. 28 U.S.C. § 2254(b)(1); Braden v. 30th Jud. Cir.
Ct. of Ky., 410 U.S. 484, 489-92 (1973) (addressing issue raised in § 2241 petition only
after concluding the petitioner, a pretrial detainee, exhausted all available state court
remedies for consideration of his constitutional claim); Skinner v. Wiley, 355 F.3d
1293, 1295 (11th Cir. 2004) (holding that administrative exhaustion is required “in
all habeas cases,” including those brought under § 2241). “The exhaustion doctrine
was crafted on federalism grounds to protect the state courts’ opportunity to confront
and resolve any constitutional issues arising within their jurisdiction and to limit
federal interference in the state adjudicatory process.” 	Johnson v. Fla., 32 F.4th
1092, 1096 (11th Cir. 2022) (citing Braden, 410 U.S. at 490–91). 	To exhaust state
remedies, a state-court prisoner must first “present his claim to the state court in a
manner that would allow a reasonable reader to understand the legal and factual
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foundation for each claim” and then “must take his claim to the state’s highest court,
either on direct appeal or on collateral review.” 	Id. (internal citations omitted); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (finding that exhaustion requires
that “state prisoners . . . give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established
appellate review process.”).
District courts are called upon to dismiss habeas corpus petitions without
ordering the State to respond “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” Paez v. Sec’y, Fla. Dep’t
of Corrs., 947 F.3d 649, 653 (11th Cir. 2020) (quoting Rule 4). 	Although the
exhaustion requirement is not jurisdictional, the Court can still sua sponte dismiss a
habeas petition on a non-jurisdictional basis, so long as (1) the petitioner is given
“notice of its decision and an opportunity to be heard in opposition[,]” and (2) the
respondent is given similar notice and an opportunity to waive that defense. 	Id. at
653 (allowing sua sponte dismissal based on untimeliness because Report and
Recommendation provided notice and opportunity to respond to both petitioner and
respondent); see also Fletcher v. Oliver, No. 1:20-00347-KD-N, 2020 WL 5100631, at
*2 n.4 (S.D. Ala. July 21, 2020), report and recommendation adopted, 2020 WL
5099937 (S.D. Ala. Aug. 28, 2020) (stating that “[t]he undersigned finds no reason the
procedure endorsed in Paez cannot also be utilized to sua sponte dismiss a habeas
petition as unexhausted”).
Here, Petitioner’s complaint was docketed on July 16, 2025. 	ECF No. 1.
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Petitioner 	is 	a 	pre-trial 	detainee 	challenging 	his 	“modification/revocation 	of
probation” that was scheduled in the Superior Court of Muscogee County on “August
8 th , 2025, 9 a.m.” 	Id. at 2. 	Petitioner complains that “excessive force was used on
[him] during arrest, while experiencing a diabetic coma” and that he was denied
medical treatment. 1 	Id. at 6. 	He also complains that his probation officer is
“committing perjury” in the petition to revoke his probation. Id. at 6, 7. He further
states that “the victims have no apprehension of harm and wish themselves to drop
charges as stated by affidavits they are said to have signed.” 	Id. 	Petitioner is
requesting that this Court “vacate” his state criminal charges that are pending
against him. 2 Id.
First, Petitioner is advised that the principles of equity, comity, and federalism
counsel federal abstention in deference to ongoing state court proceedings. See
Younger v. Harris, 401 U.S. 37, 43-46 (1971); Christman v. Crist, 315 F. App’x 231,
232 (11th Cir. 2009) (concluding that “Younger abstention is required when (1) the
proceedings constitute an ongoing state judicial proceeding, (2) the proceedings
1 Claims regarding lack of medical treatment are not cognizable in a § 2241 habeas petition because
they challenge the conditions of confinement, not the validity of confinement. 	See e.g., Nelson v.
Campbell, 541 U.S. 637, 643 (2004); Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990)
(“relief of an Eighth Amendment violation does not include release from confinement.”); Vaz v. Skinner,
634 F. App’x 778, 781 (11th Cir. 2015) (holding that a § 2241 petition was “not the appropriate vehicle
for raising an inadequate medical care claim, as such a claim challenges the conditions of confinement,
not the fact or duration of that confinement[,]” and because “release from imprisonment is not an
available remedy for a conditions-of-confinement claim.” (citing Gomez, 899 F.2d at 1126)).
2 Petitioner was arrested on May 20, 2025 for Aggravated Assault, Cruelty to Children–3rd Degree,
Willful Obstruction of Law Enforcement Officers, Simple Assault-Family Violence, Criminal Trespass,
and Criminal Trespass-Family Violence (with additional warrants added June 2025 for Violation of
Probation). 	Muscogee 	County 	Online 	Jail 	Search, 	https://portal-
gamuscogee.tylertech.cloud/app/ViewJailing/#/jailing/477708 	[https://perma.cc/8UJ7-EPMH] (last
visited Nov. 17, 2025).
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implicate important state interests, and (3) there is an adequate opportunity in the
state proceedings to raise constitutional challenges.”); Hughes v. Att'y Gen. of Fla.,
377 F.3d 1258, 1262 (11th Cir. 2004) (concluding that federal courts consistently
abstain from interfering in state criminal prosecutions unless a limited exception
applies). Petitioner has not shown that any exception to the Younger doctrine applies.
Thus, this Petition which requests that this Court prevent Petitioner’s prosecution in
the 	Muscogee 	County 	Superior Court 	for state 	criminal 	charges 	is 	subject 	to
dismissal. 	See Johnson, 32 F.4th at 1096 (finding that “an attempt to dismiss an
indictment or otherwise prevent a prosecution . . . is not a sufficient ground to enjoin
the state proceeding”).
More importantly, it does not appear that Petitioner has exhausted his state
court remedies prior to petitioning this Court for habeas relief. 	See ECF No. 1.
Petitioner utilized a district court standard form for his petition. Id. When asked on
the form about whether he has filed any petitions, applications, motions, or appeals
in the state courts he vaguely states that he filed something on June 9, 2025 in the
Superior Court of Muscogee County. 	Id. at 2. 	However, he states he is challenging
the probation revocation proceedings that are scheduled for “August 8, 2025” which
is a date that would have occurred after the date he signed his petition on July 1,
2025 that initiated the present federal civil action. 	Id. at 2, 8. 	Thus, it “plainly
appears” on the face of the petition that Petitioner has not exhausted available state
remedies and his petition is subject to dismissal for his failure to do so. 	See Paez.,
947 F.3d at 653 (quoting Rule 4).
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For the reasons set forth, it is RECOMMENDED that this 28 U.S.C. § 2241
petition be DISMISSED without prejudice.
II. 	CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS ON
APPEAL
A prisoner seeking to appeal a district court’s final order denying his petition
for writ of habeas corpus must obtain a certificate of appealability prior to filing his
appeal. 	28 U.S.C. § 2253(c)(1)(A). 	Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts provides that “[t]he district court must
issue or deny a [COA] when it enters a final order adverse to the applicant,” and if a
COA is issued “the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2).”
“A [COA] may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right.” 	28 U.S.C. § 2253(c)(2). 	This requires a
demonstration 	that 	“jurists 	of 	reason 	could 	disagree 	with 	the 	district 	court’s
resolution of [a petitioner’s] constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). 	“When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim,” such as in this case,
“a COA should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
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district court was correct in its procedural ruling.” Slack, 529 U.S. at 484. Petitioner
has not made these showings. Therefore, it is RECOMMENDED that Petitioner be
DENIED a COA. Additionally, because there are no non-frivolous issues to raise on
appeal, an appeal would not be taken in good faith. 	See 28 U.S.C. § 1915(a)(3).
Accordingly, it is RECOMMENDED that any motion to proceed in forma pauperis
on appeal be DENIED.
III. 	CONCLUSION
Petitioner’s motion to proceed in forma pauperis (ECF No. 5) is GRANTED.
It is RECOMMENDED that Petitioner’s § 2241 petition be DISMISSED without
prejudice for failure to exhaust state remedies and that his remaining pending
motions (ECF Nos. 3, 4, 7, 10) be DENIED as moot. 	It is also RECOMMENDED
that any COA and motion to proceed in forma pauperis on appeal be DENIED.
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts, the Clerk is DIRECTED “to notify the [P]etitioner” of this
ruling by mailing him a copy of this Order and Recommendation of Dismissal. 	The
Clerk is DIRECTED to serve a copy of the Petition (ECF No. 4) and this Order on
the Respondent by U.S. Mail, and they may, but are not required to, respond to
the Order and Recommendation of Dismissal.
IV. 	OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written
objections to this Recommendation with Clay D. Land, United States District Judge,
WITHIN FOURTEEN (14) DAYS after being served with a copy of this Order and
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Recommendation of Dismissal. 	Any objection is limited in length to TWENTY (20)
PAGES. See M.D. Ga. L.R. 7.4. 	Any party may seek an extension of time in which
to file written objections, provided a request for an extension is filed prior to the
deadline for filing written objections. 	Failure to object in accordance with the
provisions of § 636(b)(1) waives the right to challenge on appeal the district judge’s
order based on factual and legal conclusions to which no objection was timely made.
See 11th Cir. R. 3-1.
SO ORDERED and RECOMMENDED this 17th day of November, 2025.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
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