Petition for Writ of Certiorari — Waseem Daker, Petitioner v. Clinton Perry, Jr., Warden

,4‘

Case: 18-13800

Date Filed: 02/14/2020

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 18-13800; 18-14984

Non-Argument Calendar

D.C. Docket No. 5:18-cv-00171-MTT-CHW

WASEEMDAKER,

Plaintiff-Appellant.

versus

WARDEN,

Defendant-Appellee.

Appeals from the United States District Court

for the Middle District of Georgia

(February 14, 2020)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

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Waseem Daker, a Georgia prisoner proceeding pro se, appeals the district

court’s dismissal without prejudice of his petition for writ of habeas corpus, 28

U.S.C. § 2254. In the petition, Daker raised claims concerning his placement in

disciplinary segregation. The district court construed the petition as a 42 U.S.C.

§ 1983 complaint and dismissed it pursuant to 28 U.S.C. § 1915(g). On appeal,

Daker argues that the district court erred by concluding that his claims were not

cognizable under § 2254 and did not demonstrate that he was in imminent danger

of serious physical injury, as required by § 1915(g). He also argues that the district

court abused its discretion in dismissing his action without giving him notice or an

opportunity to amend his complaint.

I.

We review the denial of a § 2254 petition de novo. McNair v. Campbell, 416

F.3d 1291, 1297 (11th Cir. 2005). Under our prior-panel-precedent rule, “a prior

panel’s holding is binding on all subsequent panels unless and until it is overruled

or undermined to the point of abrogation by the Supreme Court or by this court

sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008).

Under this rule, “a later panel may depart from an earlier panel’s decision only

when the intervening Supreme Court decision is ‘clearly on point.’” Atl. Sounding

Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir. 2007).

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State prisoners have two main avenues of relief on complaints related to

their imprisonment under federal law: habeas corpus petitions under § 2254. and

complaints under § 1983. Muhammad v. Close, 540 U.S. 749, 750 (2004). We

have stated that “[t]hese avenues are mutually exclusive: if a claim can be raised in

a federal habeas petition, that same claim cannot be raised in a separate § 1983

civil rights action.” Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006)

Claims challenging the fact or duration of a sentence fall within the “core”

of habeas corpus, while claims challenging the conditions of confinement “fall

outside of that core and may be brought pursuant to § 1983.” Nelson v. Campbell,

541 U.S. 637, 643 (2004). Stated another way, if a claim “would not necessarily

spell speedier release, that claim does not lie at the core of habeas corpus, and may

be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 535 n.13

(2011) (internal quotation marks omitted).

The Supreme Court previously speculated that a habeas corpus claim might

be actionable where a prisoner is “put under additional and unconstitutional

restraints during his lawful custody.” Preiser v. Rodriguez, 411 U.S. 475, 499

(1973). However, the Court has never followed that speculation. Muhammad, 540

U.S. at 751 n.l. Further, the Court has allowed a claim that a prisoner was denied

procedural due process when being placed in disciplinary segregation to proceed

under § 1983, although it did not address the cognizability of such claims in those

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proceedings. See Sandin v. Conner, 515 U.S. 472, 477-87 (1995). Nevertheless,

we have specifically held that such claims may proceed in a habeas petition,

concluding that “release from administrative segregation .... falls into the

category of fact or duration of. . . physical imprisonment.” Krist v. Rickets, 504

F.2d 887, 887-88 (5th Gir. 1974) (internal quotation mark omitted).

Claims that a prison has violated the Eighth Amendment are cognizable

under § 1983. See Thomas v. Bryant, 614 F.3d 1288, 1303-04 (11th Cir. 2010).

Release from custody is generally not an available remedy for a violation of the

Eighth Amendment. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990).

However, in Sheley, we remanded, in a habeas proceeding, for an evidentiary

hearing on an Eighth Amendment claim that the length of an inmate’s

administrative segregation constituted cruel and unusual punishment. Sheley v.

Dugger, 833 F.2d 1420, 1428-30 (11th Cir. 1987) (per curiam).

First Amendment claims are also cognizable under § 1983. See, e.g, Hakim

v. Hicks, 223 F.3d 1244, 1246 (11th Cir. 2000) (addressing a free-exercise claim);

Chapell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (per curiam) (addressing an

access-to-the-courts claim); Beard v. Banks, 548 U.S. 521, 527 (2006) (addressing

a challenge to restrictions on incoming mail).

Here, the district court erred in concluding that Daker could not challenge

his disciplinary segregation in a § 2254 proceeding. Although the Supreme Court

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has suggested that such claims might not be cognizable in a habeas proceeding, it

has not done so in an opinion that is “clearly on point,” so as to overrule our

precedent, which says that such claims are cognizable. However, Daker’s First and

Eighth Amendment claims were cognizable under § 1983 and, therefore, not

cognizable under the mutually exclusive remedy .of § 2254. Although we allowed

an Eighth Amendment claim to proceed under § 2254 in Sheley, that inmate was

challenging the duration of his segregation as unconstitutional, so that claim was

within the “core” of habeas. In contrast, Daker claims only that he was denied

adequate food and medical care and was exposed to unsanitary conditions.

Accordingly, we vacate the district court’s order to the extent that it concluded that

Daker’s procedural-due-process claim was not cognizable in a § 2254 proceeding,

and we remand for further proceedings as to that claim.

II.

We review the denial of leave to proceed in forma pauperis (IFP) for abuse

of discretion, but we review the interpretation of § 1915(g) de novo. Daker v.

Comm’r, Ga. Dep’t of Corn, 820 F.3d 1278, 1283 (11th Cir. 2016). Adistrict court

abuses its discretion if it applies an improper legal standard, fails to follow proper

procedures in making its determination, or makes clearly erroneous findings of

fact. Johnson v. Breeden, 280 F.3d 1308, 1326 (11th Cir. 2002).

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Where a prisoner has, on three or more previous occasions, brought an

action or appeal that was dismissed as frivolous, malicious, or failing to state a

claim, he is prohibited from bringing another civil action without paying the filing

fee unless he is under imminent danger of serious bodily injury. 28 U.S.C.

§ 1915(g). A prisoner with three such “strikes” against him is only entitled to

proceed without payment of court fees if he is in imminent danger of serious injury

at the time that he files his suit. Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th

Cir. 1999). A prisoner’s allegation of past imminent danger is insufficient to

invoke the imminent-danger exception. Id. at 1193. When determining whether a

plaintiff has met his burden of proving that he is in imminent danger of serious

physical injury, his complaint is construed liberally, and his allegations are

accepted as true. Brown v. Johnson, 387 F.3d 1344, 1349—50 (11th Cir. 2004). The

issue is not whether each specific physical condition or symptom complained of

might constitute serious injury, but “whether his complaint, as a whole, alleges

imminent danger of serious physical injury.” Id. at 1350.

Daker’s allegations regarding his weight loss and the food provided to

inmates in disciplinary segregation, the presence of “fecal projections,” the

adequacy of dental and medical care, and the denial of outdoor exercise do not

establish that he was under imminent danger of serious injury at the time that he

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filed his suit. Accordingly, the district court did not abuse its discretion in

determining that Daker was not entitled to proceed IFP.

III.

When an inmate is barred from proceeding IFP under § 1915(g), the full

filing fee must be paid at the time that the prisoner initiates his suit. Vanderberg v.

Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001). Accordingly, when a district

court denies leave to proceed IFP pursuant to § 1915(g), it must dismiss the

complaint without prejudice, without giving the inmate an opportunity to arrange

payment of the fee. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (per

curiam).

“Due process does not always require notice and the opportunity to be heard

before dismissal.” Vanderberg, 259 F.3d at 1324. A dismissal without prejudice is

usually not an abuse of discretion, as the petitioner can simply re-file his action.

See, e.g, Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir.

1983) (per curiam) (finding no abuse of discretion where dismissal for failure to

file a court-ordered brief was without prejudice). However, if an order has the

effect of precluding a plaintiff from refiling his claim due to the running of the

statute of limitations, then the dismissal is tantamount to a dismissal with

prejudice. Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981).

7

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When “a more carefully drafted complaint” might state a claim, the plaintiff

must be given a chance to amend. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th

Cir. 2001) (per curiam). However, a district court need not allow an amendment

where (1) “there has been undue delay, bad faith, dilatory motive, or repeated

failure to cure deficiencies” through prior amendments; (2) amending the

complaint would prejudice the opposing party; or (3) “amendment would be

futile.” Id.

The district court did not abuse its discretion in dismissing Daker’s pleading

without giving him an opportunity to amend because district courts are required to

dismiss a three-striker’s suit once IFP is denied. In any event, amendment would

have been futile, as even Daker’s allegations on appeal are insufficient to

demonstrate imminent danger of serious physical injury. Furthermore, the district

court’s dismissal was without prejudice. Although Daker asserts that the dismissal

was effectively with prejudice, he did not elaborate on that assertion, and our

review of the record has not revealed any reason why he would be prevented from

bringing his claims in a new § 1983 proceeding.

'

Accordingly, we affirm the dismissal of Daker ’s properly construed § 1983

claims, and we vacate and remand in part as to Daker’s procedural due-process

claim relating to his segregation for further proceedings that are consistent with

this opinion.

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AFFIRMED IN PART, VACATED AND REMANDED IN PART.

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Case 5:18-cv-00171-MTT-CHW Document 3 Filed 07/18/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

WASEEM DAKER,

Petitioner,

v.

Case No. 5:18-cv-00171-MTT-CHW

WARDEN GREGORY

MCLAUGHLIN,

Respondent.

ORDER

Petitioner Waseem Daker, an inmate currently confined at Macon State Prison, has

filed a pleading using the Court’s standard form petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Pet., ECF No. 1. In the body of his pleading, Petitioner states that he

brings civil rights claims under 42 U.S.C. § 1983 and is entitled to proceed under 28 U.S.C.

§ 2241.

Pet. 1, ECF No. 1-1.

Petitioner seeks to challenge the conditions of his

confinement and raises a Fourteenth Amendment due process claim, First Amendment free

speech claims, First Amendment access to courts claims, First Amendment religious

exercise claims, a claim arising under the Religious Land Use and Institutionalized Persons

Act (“RLUIPA”), and Eighth Amendment deliberate indifference to serious medical needs

claims.

As discussed below, these claims are not cognizable in a habeas action, and to the

extent that Petitioner’s pleading can be construed as arising under § 1983, he is barred from

proceeding in forma pauperis as he has accumulated three strikes for purposes of 1915(g).

Case 5:18-cv-00171-MTT-CHW Documents Filed 07/18/18 Page 2 of 12

Accordingly, the instant action is DISMISSED WITHOUT PREJUDICE.

I.

Petitioner Cannot Proceed Under 28 U.S.C. $ 2254 or $ 2241

Although Petitioner primarily styles this case as a habeas action brought under §

2254 or § 2241, the substance of his filing challenges the conditions of his confinement.

“Federal law opens two main avenues to relief on complaints related to imprisonment: a

petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act

of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Hill v. McDonough, 547 U.S.

573, 578 (2006).

“These avenues are mutually exclusive: if a claim can be raised in a

federal habeas petition, that same claim cannot be raised in a separate § 1983 civil rights

action.”

Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) (citing Nelson v.

Campbell, 541 U.S. 637, 643 (2004)). “The line of demarcation between a § 1983 civil

rights action and a § 2254 habeas claim is based on the effect of the claim on the inmate’s

conviction and/or sentence.” Id. “Challenges to the validity of any confinement or to the

particulars affecting its duration are the province of habeas corpus.” Muhammad v. Close,

540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). “Such

claims fall within the ‘core’ of habeas . . . [b]y contrast, constitutional claims that merely

challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary

or injunctive relief, fall outside of that core and may be brought pursuant to § 1983 in the

first instance.” Nelson, 541 U.S. at 643 (citing Muhammad, 540 U.S. at 750 and Preiser,

411 U.S. at 498-99).

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In this case, Petitioner seeks to challenge the conditions of confinement he

experiences in Tier II administrative segregation at Macon State Prison and primarily seeks

return to general population. Petitioner does not seek speedier or immediate release, does

not challenge his sentence and conviction, and his claims for relief implicate neither.

Therefore, the appropriate cause of action for Petitioner’s claims is a civil rights complaint

under § 1983.

In three separate locations on the Petition, Petitioner has handwritten “does not

challenge [his] conviction or sentence but [his] segregation/solitary confinement,

Medberry v. Crosby, 351 F.3d 1049, 1053 (11th Cir. 2003).” Pet. 1, 4-5, ECF No. 1. To

the extent that Petitioner has cited Medberry for the proposition that he may challenge his

placement in administrative segregation through a petition for writ of habeas corpus, his

reliance is misplaced.

In Medberry, the Eleventh Circuit held that “‘it is proper for a

district court to treat a petition for release from administrative segregation as a petition for

a writ of habeas corpus’ because ‘[s]uch release falls into the category of “fact or duration

of. . . physical imprisonment’ delineated in Preiser v. Rodriguez.

Medberry, 351 F.3d

at 1053 (ellipsis in original) (quoting Krist v. Ricketts, 504 F.2d 887, 887-88 (5th Cir.

1974)). Medberry, however, concerned a challenge to a Florida inmate’s loss of gain time

credits resulting from prison disciplinary proceedings. Tedesco v. Sec ’y for Dep’t ofCorr.,

190 F. App’x 752, 755 (11th Cir. 2006) (“In Medberry, we held that a state prisoner may

file a habeas corpus petition to challenge the loss of gain time as a result of state prison

3

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disciplinary proceeding that allegedly violates his due process right under 28 U.S.C. §

2241.”). Because gain time credits implicate the duration of an inmate’s confinement, a

due process claim based on a deprivation of gain time credits is “a proper subject for a

federal habeas corpus proceeding.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974).

Petitioner is not incarcerated in Florida; he is in the custody of the Georgia

Department of Corrections. The Georgia Department of Corrections does not award gain

time credits for good behavior, and Petitioner does not allege that he has lost gain time'

credits as a result of disciplinary proceedings. Therefore, Petitioner’s civil rights claims

do not affect the duration of his confinement. Instead, even if Petitioner prevailed on all

of his claims and received all the relief demanded, “the duration of his sentence will not be

shortened by one moment.” McKinnis v. Mosely, 693 F.2d 1054, 1057 (11th Cir. 1982).

Accordingly, Petitioner’s claims do not fall within the core of habeas, and are properly

brought in a Section 1983 action. See id. (determining that challenge to administrative

segregation which did not implicate duration of confinement should have been reviewed

under Section 1983)1; Jaske v. Hanks, 27 F. App’x 622, 623 (7th Cir. 2001) (affirming

dismissal of habeas petition challenging sentence to disciplinary segregation because

'Petitioner argues that while he is confined in Tier II he is deprived of the ability to

• participate in programs and activities that would be considered by the parole board.

Petitioner does not have a liberty interest in parole, or in participating in programs which

the parole board may view positively. See Beister v. Lanier, 249 F. App’x 782, 783 (11th

Cir. 2007); Miller v. Nix, 346 F. App’x 422 (11th Cir. 2009); Kramer v. Donald, 286 F.

App’x 674 (11th Cir. 2008); Moody v. Daggett, 429 U.S. 78 (1976).

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I

“disciplinary segregation affects the severity rather than the duration of custody”); Davis

v. U.S. Dep’t ofJustice, 180 F. App’x 404, 405 (3d Cir. 2006) (“A sanction of disciplinary

segregation [] does not implicate the fact or length of confinement.”).

II.

Three Strikes

Petitioner’s claims are not cognizable in a habeas action and are properly raised in

a civil rights complaint under § 1983. “When a pro se habeas corpus petition may be fairly

read to state a claim under the Civil Rights Act, it should be so construed.” McDonald v.

Bates, 23 F. App’x 828, 828 (9th Cir. 2001); Carson v. Johnson, 112 F.3d 818, 820-21 (5th

Cir. 1997) (affirming district court’s treatment of purported habeas petition as a claim

brought under § 1983); United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990)

(“Federal Courts have long recognized that they have an obligation to look behind the label

of a motion filed by a pro se inmate and determine whether the motion is, in effect,

cognizable under a different remedial statutory framework.’/.). Therefore, the Court will

analyze Petitioner’s claims under 42 U.S.C. § 1983. So construed, Petitioner is barred from

proceeding in forma pauperis as he has accumulated three strikes under 1915(g), and he

failed to pay the entire filing fee upon initiating this suit. Therefore, his Complaint must

be dismissed.

Federal law prohibits a prisoner from bringing a civil action in federal court in forma

pauperis

if [he] has, on 3 or more prior occasions, while incarcerated or detained in

any facility, brought an action or appeal in a court of the United States that

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was dismissed on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

28 U.S.C. § 1915(g). This is known as the “three strikes provision.” Under § 1915(g), a

prisoner incurs a “strike” any time he has a federal lawsuit or appeal dismissed on the

grounds that it is frivolous or malicious or fails to state a claim. Medberry, 185 F.3d at

1193. If a prisoner incurs three strikes, his ability to proceed in forma pauperis in federal

court is greatly limited and leave may not be granted unless the prisoner shows an

“imminent danger of serious physical injury.” Id.

A review of court records on the Federal Judiciary’s Public Access to Court

Electronic Records ("PACER”) database reveals that Petitioner has filed at least three

federal lawsuits that have been dismissed as frivolous, malicious, or for failure to state a

claim. Daker v. Mokwa, No. 2:14-cv-00395 (C.D. Cal. 2014) (dismissing case under 28

U.S.C. § 1915(e)(2)(B) and finding claims were frivolous and failed to state a claim upon

which relief may be granted)2; Daker v. Warren, Case No. 13-11630 (11th Cir. Order dated

Mar. 4, 2014) (three-judge panel dismissing appeal as frivolous); Daker v. Warden, Case

No. 15-13148 (11th Cir. Order dated May 26, 2016) (three-judge panel dismissing appeal

as frivolous); Daker v. Commissioner, Case No. 15-11266 (11th Cir. Order dated Oct. 7,

2016) (three-judge panel dismissing appeal as frivolous); Daker v. Ferrero, Case No. 15-

2“The district court did not err, however, in concluding that. . . Daker v. Mokwa, No.

2:14-cv-395 (C.D. Cal. filed Jan. 16, 2014), counted as a strike.” Daker v. Head, 2018

WL 1684310, at *2 (11th Cir. 2018).

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13176 (11th Cir. Order dated Nov. 3, 2016) (three-judge panel dismissing appeal as

frivolous); Daker v. Governor, Case No. 15-13179 (11th Cir. Order dated Dec. 19, 2016)

(three-judge panel dismissing appeal as frivolous),

The Eleventh Circuit has also

previously determined that “[wjhile confined, Daker has filed at least three appeals that

[the Eleventh Circuit] dismissed as frivolous.” Daker v. Robinson, Case No. 17-11940

(11th Cir. Order dated Oct. 4, 2017) (“[T]his Court’s Clerk is directed to list Daker as a

‘three-striker’ under the Prison Litigation Reform Act in this Court for purposes of future

matters.”).

Because of this, Petitioner may not proceed in forma pauperis unless he can show

that he qualifies for the “imminent danger” exception in § 1915(g). Medberry, 185 F.3d at

1193. The Court is therefore now required to review the facts alleged in the Petition to

determine whether an imminent danger exists and warrants an exception to the three strikes

rule. When reviewing a pro se complaint for this purpose, the district court must accept all

factual allegations in the complaint as true and view all allegations of imminent danger in

the movant’s favor. Brown v. Johnson, 387 F.3d 1344,1347 (11th Cir. 2004); Tannenbaum

v. United States, 148 F.3d 1262, 1263 (11th Cir., 1998).

The imminent danger exception applies only in “genuine emergencies” when (1)

“time is pressing,” (2) the “threat or prison condition is real and proximate,” and (3) the

“potential consequence is serious physical injury.” Lewis v. Sullivan, 279 F.3d 526, 531

(7th Cir. 2002). Thus, to satisfy this provision, a prisoner must allege specific facts that

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describe “an ongoing serious physical injury, or of a pattern of misconduct evidencing the

likelihood of imminent serious physical injury.” Sutton v. Dist. Attorney's Office, 334 F.

App’x 278, 279 (11th Cir. 2009) (quoting Brown, 387 F.3d at 1350). Vague, factually

unsupported, and general allegations do not suffice, nor do allegations of past injuries. See

Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003).

Petitioner does not allege that he is under an imminent danger of serious physical

injury. The majority of his claims also do not implicate a risk of physical danger, much

. . less one that is serious and imminent. Petitioner’s claims regarding the processes which

keep him confined in Tier II, restrictions on freedom of speech and access to books and

newspapers, restrictions on his access to the law library and legal materials, restrictions on

his ability to attend prayer service and religious holidays, and restrictions on his visitation

and privileges do not arguably demonstrate an imminent danger of serious physical injury

as they do not implicate a risk to Petitioner’s health or safety. Petitioner’s remaining claims

concerning exposure to human waste, denial of adequate food, and deficiencies in his

medical care arguably concern his health and safety. The Petition taken as a whole and

construed in his favor, however, does not show that he is in an imminent danger of serious

physical injury.

Petitioner’s allegations concerning inadequate nutrition are that a lunchtime milk, a

“Vitamin C Beverage,” and late-night fruit are often missing from Petitioner’s 2800 calorie

diet. Pet. 15-17, ECF No. 1-1. Petitioner does not allege that missing 330 calories a week,

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by his estimation, from his “2800 calorie diet and HS Snack” somehow results in an

imminent danger to Petitioner. Rather, he alleges that he was underweight in the past.

Moreover, Petitioner’s allegations are generalized and primarily concern what occurs in

the Georgia Department of Corrections and “Tier II/III” generally. The factual allegations

concerning what has actually occurred to Petitioner, rather than what “often happens” in

Georgia prisons, largely concerns past events at Georgia State Prison.

Id. at 15.3

Concerning Macon State Prison, where Petitioner is currently confined and was confined

at the time he filed this action, Petitioner states that “At GDCP, GSP, and MSP, the Food

Service department that prepares lockdown trays often does not send the Vitamin C

Beverage to the lockdown units.” Id.

According to Plaintiff, the diet has “likely

contributed” to six sinus infection he has suffered since being placed in Tier II.4 Pet. 17,

ECF No. 1-1.

Petitioner’s allegations concerning inadequate medical care are equally general and

broadly describe what “often” occurs at Tier II/III dorms throughout the Georgia prison

system. Id. at 17-18. Concerning medical care Petitioner himself has received or failed to

receive, Petitioner merely states that he had surgery on his right wrist in August 2017 and

was not permitted to attend one follow-up appointment two days later. Id. at 17. Petitioner

... maintain a custom in the GDC and at GSP.” Id. “At GSP, the Food Service

department that prepares ....“ Id.

4According to Plaintiff, he was placed in the SMU while incarcerated at Georgia

Diagnostic and Classification Prison beginning in October 2012. Pet. 2, ECF No. 1-1.

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does not allege that he suffered an injury as a result. In the “denial of adequate dental care

on Tier II/II” portion of his pleading, Petitioner also alleges that in December 2016, a

dentist’s note recognized that Petitioner complained that his teeth were sensitive to

temperature, and she recommended Sensodyne to Petitioner. Pet. 18, ECF No. 1-1. There

is absolutely no indication that absent Sensodyne, Petitioner is at risk of serious injury. .

Indeed, Petitioner does not even allege that his teeth hurt, except as reflected in the

purported dentist records from 2016.

Finally, Petitioner alleges that he is exposed to feces because other inmates, who

Petitioner refers to as projectors, throw their bodily fluids out of their cells. Id. at 18-20.

Petitioner states that he often has to endure the stench of feces and the “concomitant health

risks.” Id. at 19. Petitioner, however, also alleges that the feces cleaned up orderlies,

although it may take hours or overnight for them to do so.5 Id. Petitioner does not allege

that he himself has been projected on or is prevented from cleaning it up should a projector

project onto Petitioner or into his cell. Indeed, it appears Petitioner alleges projectors

primarily target each other and then the smell wafts over to Petitioner. See id. at 19. This

does not demonstrate an imminent danger to his safety.

Moreover, Petitioner has been

alleging since at least January 2017 that other inmates confined in administrative

segregation throw their feces in the dorm. See Daker v. Dozier, 2017 WL 3037420, at *4

5In this section of his Petition, he also alleges that “[ojften the pill call nurses will not

enter a dorm with a projection.” Id. at 19. Petitioner does not allege that he specifically

has missed a medication as a result.

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(M.D. Ga. 2017).

In that time, Petitioner has been confined in at least three separate

prison facilities. Pet. 2, ECF No. 1-1. He does not allege that this has occurred at Macon

State Prison in the one-month period since he was transferred from Georgia State Prison.

Taking the Petition as a whole, as the Court is required to do, Petitioner has failed

to satisfy the imminent danger standard. Most of Petitioner’s allegations are generalized

and appear to primarily concern what occurs in general throughout the Georgia Department

of Corrections.

Courts have repeatedly held that such generalized allegations are

insufficient to satisfy the imminent- danger standard. See Daker v. Dozier, 2017 WL

3037420 (M.D: Ga. 2017); Daker v. Dozier, 2018 WL 582581 (S.D. Ga. 2018); Daker v.

Dozier, 2017 WL 3037420 (M.D. Ga. 2017).

Where Petitioner has presented specific

examples of events personal to him, they largely concern past events and risks that occurred

sometime in the past. A past threat of serious physical injury is insufficient to plead

imminent danger. O’Connor v. Suwannee Corr. Inst., 649 F. App’x 802, 804 (11th Cir.

2016).

Finally, allegations of sensitive teeth and occasional sinus infections, of “often”

missing a fruit or drink with a meal or snack, and of confinement in the same dorm with

inmates that throw their feces are insufficient to show that Petitioner is in an imminent

danger of serious physical injury. Accordingly, Petitioner does not qualify under the

imminent danger exception.

11

Case 5:18-cv-00171-MTT-CHW Document 3 Filed 07/18/18 Page 12 of 12

III.

Conclusion

As discussed above, Petitioner seeks to proceed in this action under 28 U.S.C. §

2241, 28 U.S.C. § 2254, and 42 U.S.C. § 1983. Petitioner, however, does not challenge

his conviction or contest the duration of his confinement. Instead, Petitioner seeks to raise

multiple civil rights claims based on the conditions of his confinement. Therefore, to the

extent that Petitioner seeks to proceed under § 2241 or §2254, his claims are not cognizable.

Petitioner cannot proceed under § 1983 either, as he has failed to pay the $400.00 filing

fee6 and has accumulated three strikes for purposes of 1915(g) in the event that he wishes

to proceed in forma pauperis. Accordingly, this action is DISMISSED WITHOUT

PREJUDICE.

SO ORDERED, this 18th day of July, 2018.

S/ Marc T. Treadwell

MARC T. TREADWELL, JUDGE

UNITED STATES DISTRICT COURT

Petitioner cannot circumvent the provisions of 1915(g) by styling his Section 1983 civil

rights complaint as an action brought under § 2254. This includes the filing fee

applicable to civil rights cases. “He must pay the filing fee at the time he initiates suit.”

Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002).

12

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

WASEEM DAKER,

Petitioner,

v.

Case No. 5:18-cv-00171-MTT-CHW

WARDEN GREGORY

MCLAUGHLIN,

Respondent.

ORDER

Petitioner Waseem Daker, an inmate confined at Macon State Prison, filed a pro se

action using the Court’s standard habeas form for use by prisoners proceeding under 28

U.S.C. § 2254. In the body of his pleading, Petitioner raises multiple claims challenging

the conditions of his confinement attendant to his placement in administrative segregation

and seeks to proceed under 28 U.S.C. § 2241, 28 U.S.C. § 2254, and 42 U.S.C. § 1983.

After reviewing his claims, the Court found that they are not cognizable in an application

for writ of habeas corpus and are properly brought in a civil rights complaint under 42

U.S.C. § 1983. Petitioner, however, is barred from proceeding in forma pauperis under

28 U.S.C. 1915(g) and failed to pay the Court’s filing fee. Consequently, on July 18,

2018, the Court dismissed this action without prejudice. Order of Dismissal, ECF No. 3.

Thereafter, Petitioner filed a motion for access to case authorities (ECF No. 5), a motion

to vacate (ECF No. 6), and a motion for leave to appeal in forma pauperis (ECF No. 11).

Petitioner’s motions are DENIED as follows.

0 w&ws'y

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 2 of 12

I.

Motion to Vacate

In Petitioner’s motion to vacate brought under Rule 59(e), he argues that (1) the

Court erred by finding that his claims for relief are not cognizable in a habeas action, (2)

the Court erred by failing to provide Petitioner notice prior to dismissing this action, and

(3) Petitioner is entitled to a certificate of appealability. Under the local rules, motions for

reconsideration “shall not be filed as a matter of routine practice.” M.D. Ga. L.R. 7.6.

“The only grounds for granting [a Rule 59] motion are newly discovered evidence or

manifest errors of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)

(alteration in original).

Petitioner primarily argues that his claims for relief are cognizable in a habeas

action, and the Court erred by determining his claims were properly brought under 42

U.S.C. § 1983. The Court construed this same argument from the many references to

Medberry v: Crosby, 351 F.3d 1049 (11th Cir. 2003) in the Petition and rejected it.

Motions for reconsideration “cannot be used to ‘relitigate old matters, raise argument or

present evidence that could have been raised prior to the entry ofjudgment.’” Wilchombe

v. Teevee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (citing Michael Linet, Inc. v.

Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)).

Accordingly,

Petitioner’s attempt to bolster the arguments the Court construed from his Petition, rehash

arguments, or refine or improve his reasoning is not a valid basis for reconsideration.

Furthermore, Petitioner’s argument is without merit. As the Court discussed in the

order of dismissal, the United States Supreme Court has distinguished challenges to prison

2

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 3 of 12

disciplinary proceedings affecting the conditions of a prisoner’s confinement, which are

properly brought under § 1983, from challenges to prison proceedings which may impact

the duration of a prisoner’s confinement and are thus properly brought through a petition

for writ of habeas corpus. Wolff v. McDonnell, 418 U.S. 539, 554 (1974). In doing so,

the Supreme “Court has focused on the need to ensure that state prisoners use only habeas

corpus (or similar state) remedies when they seek to invalidate the duration of their

confinement—either directly through an injunction compelling speedier release or

indirectly through a judicial determination that necessarily implies the unlawfulness of the

State’s custody.”

Wilkinson v. Dotson, 544 U.S. 74, 81 (2005); see also Edwards v.

Balisok, 520 U.S. 641 (1997); Heckv. Humphrey, 512 U.S. All (1994). “[Constitutional

claims that merely challenge the-conditions of a prisoner’s confinement, whether the

inmate seeks monetary or injunctive relief, fall outside [the core of habeas] and may be

brought pursuant to § 1983 in the first instance.” Nelson v. Campbell, 541 U.S. 637, 643

(2004) (citing Muhammad v. Close, 540 U.S. 749, 750 (2004) and Preiser v. Rodriguez,

411 U.S. 475, 489 (1973)).

Of course, some cases implicate both § 1983 relief and the core of habeas. Such

cases concern claims for damages which also affect the duration of a prisoner’s

confinement or challenge the validity of a prisoner’s conviction. When a prisoner brings

In Muhammad, the Supreme Court observed that it had “never followed the speculation in Preiser . . .

that such a prisoner subject to ‘additional and unconstitutional restraints might have a habeas claim

independent of § 1983.’” 540 U.S. at 751 n. 1

3

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 4 of 12

a claim that falls within the literal terms of § 1983, “§ 1983 must yield to the more specific

federal habeas statute with its attendant procedural and exhaustion requirements, where an

inmate seeks injunctive relief challenging the fact of his conviction or the duration of his

sentence.” Nelson, 541 U.S. at 643 (citing Preiser, 411 U.S. at 489). This is not one of

those cases. Rather, it is a prisoner’s challenge to administrative proceedings that cannot

“be construed as seeking a judgment at odds with his conviction or with the State’s

calculation of time to be served in accordance with the underlying sentence,” and it has

raised “no claim on which habeas relief could [be] granted on any recognized theory.”

Muhammad, 540 U.S. at 754. “[HJabeas remedies do not displace § 1983 actions where

success in the civil rights suit would not necessarily vitiate the legality of (not previously

invalidated) state confinement” or the duration of confinement. Dotson, 544 U.S. at 81;

see also Pittman v. Tucker, 213 F. App’x 867, 869 (11 th Cir. 2007) (per curiam) (discussing

Muhammad and holding that claims which do not contest “the validity of [a plaintiffs]

underlying conviction” and do not “affect the time [a plaintiff] would serve related to his

conviction,” are not Heck-barred).

Petitioner attempts to distinguish Muhammad, Hill, Nelson, and other cases relied

on by this Court in the order of dismissal based on the factual contexts in which they arose.

Petitioner also relies on Sheleyv. Dugger, 833 F.2d 1420 (11th Cir. 1987) and several cases

from the former Fifth Circuit that considered conditions of confinement claims in the

context of an appeal from denial of a habeas petition. The Eleventh Circuit has since

determined that habeas relief is not the appropriate vehicle for raising claims which

4

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 5 of 12

challenge the conditions of a prisoner’s confinement.

Vaz v. Skinner, 634 F. App’x 778,

781 (11th Cir. 2015) (per curiam). Moreover, since the cases relied on by Petitioner were

decided, the Supreme Court has “declared [] in no uncertain terms, that when a prisoner’s

claim would not ‘necessarily spell speedier release,’ that claim does not lie at the ‘core of

habeas corpus,’ and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S.

521,535 n.13 (2011).

In this Circuit, a lawsuit which does not contest the underlying conviction or the

“State’s calculation of time to be served in accordance with the underlying sentence” does

not “implicate a claim that [is] cognizable in a habeas action.”2 Roberts v. Wilson, 259 F.

App’x 226, 228 (11th Cir. 2007) (per curiam).

Section 1983 and habeas relief are

“mutually exclusive: if a claim can be raised in a federal habeas petition, that same claim

cannot be raised in a separate § 1983 civil rights actions.” Hutcherson v. Riley, 468 F.3d

750, 754 (11th Cir. 2006) (citing Nelson, 541 U.S. at 643); Thomas v. McDonough, 228 F.

App’x 931, 932 (11th Cir. 2007) (“The Court in Wilkinson held that claims like

[Petitioner’s] are cognizable under § 1983. Because § 1983 and § 2254 are mutually

exclusive, [Petitioner’s] claims cannot be brought under § 2254.”); Miller v. Nix, 346 F.

2Some Circuit Courts of Appeal have suggested that claims of a type similar to Petitioner’s may be

brought in a habeas action. See e.g. Poree v. Collins, 866 F.3d 235 (5th Cir. 2017); Thompson v.

Choinski, 525 F.3d 205 (2d Cir. 2008); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 242 n.5 (3d Cir.

2005); Aamer v. Obama, 742 F.3d 1023 (D.C.C. 2014). Petitioner’s arguments reflect the reasoning in

some of these cases. Fie argues recent Supreme Court cases such as Heck and Muhammad delineate the

limits of § 1983 but not the limits of habeas. Like the Eleventh Circuit, the Ninth and Seventh Circuits

have determined or suggested that § 1983 and habeas are mutually exclusive. See Nettles v. Grounds,

830 F.3d 922 (9th Cir. 2016); Richmond v. Scibana, 387 F.3d 602, 605 (7th Cir. 2004). Both Circuits

have further determined that challenges to placement in administrative segregation are not cognizable in

habeas. Nettles, 830 F.3d at 922; Jaske v. Hanks, 27 F. App’x 622, 623 (7th Cir. 2001).

5

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 6 of 12

App’x 422, 423 (11th Cir. 2009) (“Because habeas and civil rights actions are mutually

exclusive, the district court did not err by determining that Miller’s claims cannot be

brought in a petition for writ of habeas corpus.” (internal citations omitted)). Both the

Supreme Court and the Eleventh Circuit characterize a due process challenge to a

prisoner’s placement in administrative segregation as a “conditions of confinement” claim.

See e.g. Sandin v. Conner, 515 U.S. 472 (1995); Quintanilla v. Bryson, 730 F. App’x 738'

(11th Cir. 2018); Al-Amin v. Donald, 165 F. App’x 733 (11th Cir. 2006); Delgiudice v.

Primus, 679 F. App’x 944 (11th Cir. 2017); Turner v. Warden, GDCP, 650 F. App’x 695

(11th Cir. 2016). Indeed, in Quintanilla, a case cited by Petitioner, the Eleventh Circuit

addressed under § 1983 a due process claims challenging a prisoner’s placement in the

Georgia Department of Corrections tier program.

Similar to Quintanilla, Petitioner also raises a Fourteenth Amendment due process

claim under Sandin, challenging his confinement in the Georgia Department of Corrections

tier program.

He additionally raises a First Amendment free speech claim, First

Amendment religious exercise claims, a claim arising under the Religious Land Use and

Institutionalized Persons Act (“RLUIPA”), and Eighth Amendment deliberate indifference

to serious medical needs claims.

As observed in the order of dismissal, Petitioner

explicitly states that he is not challenging his underlying conviction or the duration of his

sentence, and his claims implicate neither. Petitioner could receive all the relief he seeks

and the duration of his sentence would not be altered by one day and the validity of his

conviction would not be implicated. Petitioner’s civil rights claims are not cognizable in

6

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 7 of 12

a habeas action. See Goodman v. Warden, 687 F. App’x 788, 788-89 (11th Cir. 2017) (per

curiam) (prisoner challenges to conditions of confinement, including claim that prisoner

was entitled to less restrictive confinement, “are raised properly in a 42 U.S.C. § 1983 civil

action not'in a habeas proceeding” (citing McNabb v. Comm ’r Ala. Dep’t of Corr., 727

F.3d 1334, 1344 (11th Cir. 2013))); Chamblee v. Florida, 2018 WL 4654712, at *3 (11th

Cir. 2018) (quoting 28 U.S.C. § 2254(a)) (stating that “[ujnder the federal habeas statute .

.. a state habeas petitioner may challenge only the state-court judgment ‘pursuant to’ which

the petitioner is being held ‘in custody’”)- Petitioner is not entitled to Rule 59 relief on

this ground.

After determining that Petitioner’s claims are not cognizable in a habeas action,

rather than dismiss his pleading for that reason, the Court considered under what statute

Petitioner’s claims might arise.3 See Cruitt v. Ala., 647 F. App’x 909 (11th Cir. 2016) (per

curiam) (vacating and remanding case where district court dismissed access-to-courts

claim brought in § 2254 petition and failed to construe the action as arising under § 1983);

Muhammad v. Williams-Hubble, 380 F. App’x 925, 926 (11th Cir. 2010) (per curiam)

(construing claims raised in a purported habeas petition concerning deprivation of

constitutional rights perpetrated by federal officers as a Bivens lawsuit); Hall v. Warden,

FCC Coleman-USP, 571 F. App’x 826, 828 (11th Cir. 2014).

The Court construed

Under Habeas Corpus Rule 4, if‘it plainly appeals from the petition . . . that the petitioner is not entitled

to relief in the district court,’ the court must summarily dismiss the petition without ordering a responsive

pleading.” Mayle v. Felix, 545 U.S. 644, 655 (2005) (ellipsis in original).

7

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 8 of 12

Petitioner’s conditions of confinement claims as brought in a civil rights complaint under

42 U.S.C. § 1983. Civil rights complaints brought by prisoners are subject to the Prison

Litigation Reform Act of 1995 (PLRA), which requires the Court to screen prisoner filings

to identify cognizable claims and dismiss the complaint if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. Furthermore,

under the PLRA, if a prisoner has three federal lawsuits or appeals dismissed on these

grounds, he may not proceed in forma pauperis unless he shows that he is under an

imminent danger of serious physical injury at the time he filed his complaint. Medberry

v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999); see also 28 U.S.C. § 1915(a). In this

case, the Court concluded that Petitioner has acquired'three strikes for purposes of 1915(g)

and does not qualify to proceed under the imminent danger exception. As Petitioner failed

to pay the filing fee and is barred from proceeding in forma pauperis, the Court dismissed

his Petition without prejudice pursuant to 28 U.S.C. §’ 1915(g), per the procedure

established by the Eleventh Circuit. See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th

Cir. 2002) (per curiam).

Prior to dismissing his pleading, the Court did not sua sponte invite Petitioner to

amend his pleading. Petitioner argues that this was error and cites Tazoe v. Airbus S.A.S.,

631 F.3d 1321 (11th Cir. 2011), for the proposition that a district court must provide notice

to a litigant prior to sua sponte dismissal. Tazoe concerns a sua sponte dismissal based on

forum non conveniens, which the Eleventh Circuit analogized to a dismissal under 28

U.S.C. § 1404(a). Id. at 1336. Neither forum non conveniens nor 28 U.S.C. § 1404(a)

8

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 9 of 12

are applicable to the reason for dismissal in this case, and the standard discussed in Tazoe

is inapplicable. The same standard does not apply to the context and posture of this case,

and the court is not required to sua sponte grant leave to amend prior to dismissing an

action without prejudice. Quinlan v. Personal Transport Services Co., 329 F. App’x 246,

249 (11th Cir. 2009) (per curiam) (“But we never have stated that a district court sua sponte

must allow a plaintiff an opportunity to amend where it dismisses a complaint without

prejudiced (emphasis added) (citing Bank v. Pitt, 928 F.2d 1108, 1112(11th Cir. 1991))).

Additionally, leave to amend should be provided sua sponte—prior to dismissal with

prejudice—only where “a pro se plaintiffs complaint if more carefully drafted, might state

a claim.” Jemison v. Mitchell, 380 F. App’x 904, 906 (11th Cir. 2010) (per curiam).

Petitioner’s pleading is detailed, researched, and well-articulated.

A more carefully

drafted Petition on the facts of this case would not render his claims cognizable in a habeas

action and would not entitle Petitioner to proceed in forma pauperis.

Consequently, this

ground for relief provides no basis for reconsideration, and Petitioner is not entitled to Rule

59 relief.

In Petitioner’s motion to vacate, he also requests a certificate of appealability.

Although Petitioner filed his pleading on the Court’s standard form petition for prisoners

proceeding under 28 U.S.C. § 2254, the Court determined that his claims arise under 42

U.S.C. § 1983, and according to the federal judiciary’s Public Access to Court Electronic

Records online database, the Eleventh Circuit docketed his appeal as “Prisoner—Civil

Rights.” Daker v. McLaughlin, No. 18-13800 (11th Cir. docketed Sept. 7, 2018). It is

9

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 10 of 12

not necessary to obtain a certificate of appealability in order to appeal the denial of relief

in a 42 U.S.C. § 1983 action.4

II.

Motion for Access to Case Authorities

In Petitioner’s motion for access to case authorities, he requests that “the court

[]order that Respondent shall provide Petitioner with paper copies of any opinions cited by

the court in its dismissal order, or alternatively, for the court to do the same.” Mot. for

Access 23, ECF No. 5.

The basis for Petitioner’s request essentially amounts to a

restatement of the First Amendment claim raised in Petitioner’s initial pleading.

Petitioner is not entitled to proceed with his claim at this time. Furthermore, the Eleventh

Circuit has “never held that a prisoner’s right of access to the courts entitles a prisonerplaintiff, even one proceeding in forma pauperis, to free copies of court documents,

including his own pleadings.” Jackson v. Fla., Dep’t ofFinancial Services, 479 F. App’x

289, 292-93 (11th Cir. 2012) (per curiam) (citing Harless v. U.S., 329 F.2d 397, 398-99

(5th Cir. 1964)). Accordingly, Petitioner’s motion for access to case authorities (ECF No.

5) is DENIED.

4In his motion to vacate, Petitioner points out that a habeas petition he filed in the Southern District of

Georgia contesting his placement in administrative segregation and the conditions of his confinement at

Georgia State Prison was allowed to proceed under Rule 4. Daker v. Allen, 6:17-cv-00023 (S.D. Ga.

filed Feb. 3, 2017). In that case, the Magistrate Judge originally recommended dismissing the action

upon determining that habeas relief was unavailable for Petitioner’s claims. Petitioner objected, and the

Magistrate Judge vacated the recommendation upon determining that Daker “potentially” raised some

claims appropriately brought in a § 2254 action. The Magistrate Judge did not offer substantive analysis

of the issue nor determine that Petitioner’s claims are cognizable in a habeas action.

10

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 11 of 12

III.

Motion for Leave to Appeal in Forma Pauperis

Plaintiff has filed a motion to proceed in forma pauperis on appeal. ECF No. 11.

As was noted in the Court’s July 18, 2018 Order (ECF No. 3), Plaintiff has accumulated

more than three strikes under 28 U.S.C. § 1915(g).

The Prison Litigation Reform Act provides that a prisoner may not bring a civil

action or appeal a civil judgment

if the prisoner has, on 3 or more prior occasions, while incarcerated or

detained in any facility, brought an action or appeal in a court of the United

States that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted, unless the prisoner is

under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Because Plaintiff has had more than three complaints and/or appeals dismissed as

frivolous in the past and has made no showing of “imminent danger of serious physical

injury',” his motion to proceed in forma pauperis on appeal is hereby DENIED.

If Plaintiff wishes to proceed with his appeal, he must pay the entire appellate filing

fee, which is $505.00.

Consequently, Petitioner’s motion for leave to appeal in forma pauperis (ECF No.

11) is DENIED.

CONCLUSION

Because Petitioner has failed to satisfy the standard under Rule 59, Petitioner’s

motion to vacate (ECF No. 6) is DENIED. Petitioner’s motion for access to case

authorities (ECF No. 5) and motion for leave to appeal in forma pauperis (ECF No. 11)

11

Case 5:18-cv-00171-MTT-CHW Document 12 Filed 10/25/18 Page 12 of 12

are also DENIED.

SO ORDERED, this 25th day of October, 2018.

S/Marc T. Treadwell

MARC T. TREADWELL, JUDGE

UNITED STATES DISTRICT COURT

12

Case: 18-13800

Date Filed: 04/03/2020

Page: 1 of 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-13800-CC ; 18-14984-CC

WASEEM DAKER,

Plaintiff - Appellant,

versus

WARDEN

Defendant - Appellee.

Appeal from the United States District Court

for the Middle District of Georgia

BEFORE: WILSON, WILLIAM PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

The Petition for Panel Rehearing filed by the Appellant, Waseem Daker, is DENIED.

ORD-41

\

APPENDIX E

This case involves Title 28, United States Code

(“U.S.C.”) § 2254, which provides in pertinent part:

(a) The Supreme Court, a

Justice thereof, a circuit

judge, or a district court

shall entertain an applica­

tion for a writ of habeas cor­

pus in behalf of a person in

custody pursuant to the

judgment of a State court

only on the ground that he

is in custody in violation of

the Constitution or laws or

treaties of the United

States.

(b)

(l) An application for a writ

of habeas corpus on behalf

of a person in custody pur­

suant to the judgment of a

State court shall not be

granted unless it appears

that—

(A) the applicant has ex­

hausted the remedies avail­

able in the courts of the

State,’ or

(B)

App. 1

(i) there is an absence of

available State corrective

process; or

(ii) circumstances exist that

render such process ineffec­

tive to protect the rights of

the applicant.

(2) An application for a writ

of habeas corpus may be de­

nied on the merits, notwith­

standing the failure of the

applicant to exhaust the

remedies available in the

courts of the State.

(3) A State shall not be

deemed to have waived the

exhaustion requirement or

be estopped from reliance

upon the requirement un­

less the State, through

counsel, expressly waives

the requirement.

(c) An applicant shall not be

deemed to have exhausted

the remedies available in

the courts of the State,

within the meaning of this

section, if he has the right

under the law of the State

to raise, by any available

procedure, the question

presented.

App. 2

(d) An application for a writ

of habeas corpus on behalf

of a person in custody pur­

suant to the judgment of a

State court shall not be

granted with respect to any

claim that was adjudicated

on the merits in State court

proceedings unless the ad­

judication of the claim—

(l) resulted in a decision

that was contrary to, or in­

volved an unreasonable ap­

plication of, clearly estab­

lished Federal law, as de­

termined by the Supreme

Court of the United States!

or

(2) resulted in a decision

that was based on an unrea­

sonable determination of

the facts in light of the evi­

dence presented in the

State court proceeding.

(e)

(l) In a proceeding insti­

tuted by an application for a

writ of habeas corpus by a

person in custody pursuant

to the judgment of a State

court, a determination of a

factual issue made by a

App. 3

t

p

State court shall be pre­

sumed to be correct. The ap­

plicant shall have the bur­

den of rebutting the pre­

sumption of correctness by

clear and convincing evi­

dence.

(2) If the applicant has

failed to develop the factual

basis of a claim in State

court proceedings, the court

shall not hold an eviden­

tiary hearing on the claim

unless the applicant shows

that—

(A) the claim relies on—

(i) a new rule of constitu­

tional law, made retroactive

to cases on collateral review

by the Supreme Court, that

was previously unavailable;

or

(ii) a factual predicate that

could not have been previ­

ously discovered through

the exercise of due dili­

gence! and

(B) the facts underlying the

claim would be sufficient to

establish by clear and con­

vincing evidence that but

for constitutional error, no

App. 4

reasonable factfinder would

have found the applicant

guilty of the underlying of­

fense.

(£) If the applicant chal­

lenges the sufficiency of the

evidence adduced in such

State court proceeding to

support the State court’s

determination of a factual

issue made therein, the ap­

plicant, if able, shall pro­

duce that part of the record

pertinent to a determina­

tion of the sufficiency of the

evidence to support such

determination. If the appli­

cant, because of indigency

or other reason is unable to

produce such part of the

record, then the State shall

produce such part of the

record and the Federal

court shall direct the State

to do so by order directed to

an appropriate State offi­

cial. If the State cannot pro­

vide such pertinent part of

the record, then the court

shall determine under the

existing facts and circum­

stances what weight shall

be given to the State court’s

factual determination.

App. 5

(g) A copy of the official rec­

ords of the State court, duly

certified by the clerk of such

court to be a true and cor­

rect copy of a finding, judi­

cial opinion, or other relia­

ble written indicia showing

such a factual determina­

tion by the State court shall

be admissible in the Fed­

eral court proceeding.

(h) Except as provided in

section 408 of the Con­

trolled Substances Act, in

all proceedings brought un­

der this section, and any

subsequent proceedings on

review, the court may ap­

point counsel for an appli­

cant who is or becomes fi­

nancially unable to afford

counsel, except as provided

by a rule promulgated by

the Supreme Court pursu­

ant to statutory authority.

Appointment of counsel un­

der this section shall be

governed by section 3006A

of title 18.

(i) The ineffectiveness or in­

competence of counsel dur­

ing Federal or State collat­

eral post-conviction pro­

ceedings shall not be a

App. 6

T]

*

t*

ground for relief in a pro­

ceeding arising under sec­

tion 2254.

(June 25, 1948, ch. 646, 62

Stat. 967! Pub. L. 89-711,

§2, Nov. 2, 1966, 80 Stat.

1105; Pub. L. 104-132, title

I, § 104, Apr. 24, 1996, 110

Stat. 1218.).

App. 7