TAYLOR v. GILLIS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JIMMY L TAYLOR, 	:
:
Petitioner, 	:
v. 	: 	Case No. 5:25-cv-178-MTT-CHW
:
SHAWN GILLIS, 	:
:
Respondent.1 	:
________________________________ 	:
ORDER AND RECOMMENDATION
In accordance with the Court’s previous orders and instructions, pro se Petitioner
Jimmy L. Taylor submitted his Recast Petition (ECF No. 4) and a motion to proceed in
forma pauperis (ECF No. 5). 	Petitioner’s motion demonstrates that he is not now able to
pay the Court’s $5.00 filing fee. 	His motion to proceed in forma pauperis is therefore
GRANTED. After review of the Recast Petition pursuant to Rule 4 of the Rules Governing
Habeas 	Corpus 	Cases 	in 	the 	United 	States 	District 	Courts, 	however, 	it 	is
RECOMMENDED that the Recast Petition be DISMISSED WITHOUT PREJUDICE
because Petitioner had not exhausted available state remedies at the time he filed it. 	It is
1 On his 28 U.S.C. § 2254 form, Petitioner named the State of Georgia as the Respondent.
However, Rule 2 of the Rules Governing Section 2254 cases in the United States District
Courts provides that "if the petitioner is currently in custody under a state court judgment,
the petition must name as respondent the state officer who has custody." 	Petitioner is
incarcerated in the Wheeler Correctional Facility, and the warden of that facility is Shawn
Gillis. 	See 	https://gdc.georgia.gov/document/document/facility-directory-list/download
[https://perma.cc/VM32-4JBA] (last visited Nov. 10, 2025). 	Therefore, the Court has
corrected the style of this case to show Shawn Gillis as the correct Respondent. 	The Clerk
is DIRECTED to correct the Docket accordingly.
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also 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,
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); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). 	To exhaust state court remedies, a state prisoner must first present his claims to
the state courts through one complete round of the state’s appellate review process, either
on direct appeal or in state post-conviction proceedings. 	Boerckel, 526 U.S. at 844-45.
Failure to exhaust state remedies is a valid reason for dismissal under Rule 4 of the
Rules Governing Section 2254 Cases in the United States District Courts. 	See Paez v.
Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 653–54 (11th Cir. 2020). 	Although the
exhaustion requirement is not jurisdictional, the Court can still sua sponte dismiss a § 2254
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
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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”).
The initial Petition in the above-captioned action (ECF No. 1) was docketed on
April 29, 2025, as a petition seeking federal habeas corpus relief pursuant to 28 U.S.C. §
2241. 	On the same day, Petitioner filed a document in a separate case that was also
docketed as a § 2241 petition. 	See generally Taylor v. Fletcher, Case No. 5:25-cv-179-
MTT-ALS (M.D. Ga. Apr. 29, 2025) (“Fletcher”). 	Both petitions appeared to challenge
Petitioner’s December 16, 2022, conviction in the Houston County Superior Court for
exploitation and intimidation of an elder person; practicing medicine without a license;
attempting to practice medicine without a license; and driving a motor vehicle with a
suspended license. 	See ECF No. 1 at 3. 	The Court therefore entered an order
consolidating Fletcher into the above-captioned action. 	See generally ECF No. 3 in
Fletcher. 	To ensure that each of Petitioner’s claims was preserved in this case, Petitioner
was ordered to file a single Recast Petition that included every claim he intended to raise,
even if he had already included those claims in other documents or cases already filed with
the Court. 	ECF No. 3 at 2. 	In his Recast Petition, which is now the operative pleading
in this action, Petitioner confirms he is currently “[s]erving a sentence (incarceration,
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parole, probation, etc.) after having been convicted of a crime” and that he was sentenced
on December 16, 2022, in the Superior Court of Houston County, Georgia. 	Id. at 1.2
The face of the Recast Petition demonstrates that Petitioner has not exhausted his
available state remedies concerning his conviction and sentence. 	The form on which
Petitioner filed his Recast Petition requires Petitioner to explain any “Earlier Challenges of
the Decision or Action.” 	ECF No. 4 at 2. 	Petitioner states that he “appeal[ed] the
decision, file[d] a grievance, or [sought] an administrative remedy” with respect to his
conviction by filing a motion for new trial. 	Id. 	The trial court denied this motion, and
Petitioner attempted to appeal this denial to the Georgia Supreme Court. 	Id. 	The Georgia
Supreme Court transferred the case to the Georgia Court of Appeals, which appears to have
denied the motion. 	See id. 	Petitioner acknowledges that his appeal of this denial was
pending with the Georgia Supreme Court at the time he filed his Petition. 	Id. at 3 (noting
that date of filing was May 25, 2025, and that the case is “Under Revie[w] (TBD)”). 	Thus,
it “plainly appears” on the face of the Recast Petition that Petitioner has not fully exhausted
available state remedies. 	Rules Governing § 2254 Cases, R. 4. 	It is accordingly
RECOMMENDED that Petitioner’s application be DISMISSED without prejudice.
II. 	COA 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 has no absolute entitlement to appeal but must obtain a COA. 	28
2 Petitioner recast the original Petition on another § 2241 form, but because he is currently
“in custody pursuant to the judgment of a state court, his Recast Petition is subject to both
§ 2241 and § 2254.” 	Thomas v. Crosby, 371 F.3d 782, 786 (11th Cir. 2004) (citing
Medberry v. Crosby, 351 F.3d 1049, 1064 (11th Cir. 2003))
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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 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.
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III. 	CONCLUSION
For the foregoing reasons, Petitioner’s motion to proceed in forma pauperis (ECF
No. 	5) 	is 	GRANTED, 	but 	it 	is 	RECOMMENDED 	that 	the 	Recast 	Petition 	be
DISMISSED WITHOUT PREJUDICE because he failed to fully exhausted available
state remedies prior to filing his Recast Petition. 	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. 	Pursuant to the
memorandum of understanding with the Attorney General of the State of Georgia, the
Clerk is DIRECTED to serve a copy of the Recast Petition (ECF No. 4) and this Order
and Recommendation of Dismissal on the Attorney General and Respondent electronically
through CM/ECF 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 the Honorable Marc T. Treadwell, United States District
Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Order
and 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 §
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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 20th day of November, 2025.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge
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