TURNER v. BURGESS

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
OLAN GIRARD TURNER, JR, 	:
:
Petitioner, 	:
:
v. 	: 	Case No. 7:25-cv-118-WLS-ALS
:
Captain JEROME BURGESS, 	:
:
Respondent.1 	:
:
ORDER AND RECOMMENDATION
Petitioner Olan Girard Turner, an inmate at Thomas County Jail, filed two separate
recast petitions for writ of habeas corpus relief under 28 U.S.C. § 2241 (Doc. 23) and 28
U.S.C. § 2254 (Doc. 26).2 Petitioner also paid the required $5.00 filing fee. In addition,
since the Court filed its last order, Petitioner has submitted (1) at least six additional
letters that appear to complain about the conditions of his confinement (Docs. 25, 27, 29,
30, 31, 32) and (2) a motion for appointed counsel (Doc. 28). For the following reasons,
Petitioner’s motion for appointed counsel is DENIED, and it is RECOMMENDED that
Petitioner’s habeas petition be DISMISSED WITHOUT PREJUDICE because he has
not exhausted available state remedies. It is also RECOMMENDED that a certificate of
1 On his 28 U.S.C. § 2254 form, Petitioner named Captain Jerome Burgess and Sgt. T. McGhee as
Respondents. (Doc. 26, at 1). However, Rule 2(a) 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.” Where the petitioner “is in jail,
prison, or other actual physical restraint due to the state action he is attacking,” the proper respondent is
“the state officer who has official custody of the petitioner (for example, the warden of the prison).” 28
U.S.C. § 2254, Rule 2, advisory committee’s note. Petitioner is incarcerated in the Thomas County Jail, and
the captain of the jail is Jerome Burgess. Jerome Burgess therefore appears to be a proper respondent, and
the Clerk need not include Sgt. McGhee as a named respondent on the docket.
2 The Court ordered Petitioner to recast his Petition on one of the Court’s standard forms to seek habeas
relief pursuant to 28 U.S.C. § 2254, which is the federal statute for challenging a state court conviction.
(Doc. 6).
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appealability (“COA”) and any motion to proceed in forma pauperis (“IFP”) on appeal be
DENIED.
I. 	MOTION FOR APPOINTED COUNSEL
Generally, there is no right to legal representation in a federal habeas corpus
proceeding. See, e.g., Wright v. West, 505 U.S. 277, 293 (1992). The rules governing
habeas cases provide that appointment of counsel is proper if an evidentiary hearing is
needed, if counsel is necessary for effective discovery, or “if the interest of justice so
requires.” Jones v. Thompson, No. CV410-039, 2010 WL 3909966, at *2 (S.D. Ga. Oct. 5,
2010) (citing Rules 6(a) and 8(c) of the Rules Governing § 2254 Cases). At this
preliminary stage, there is no need for an evidentiary hearing or discovery, and the Court
finds that the interest of justice does not otherwise require appointment of counsel.
Petitioner’s motion is therefore DENIED. If it becomes apparent at some point later in
these proceedings that counsel should be appointed for Petitioner, the Court, on its own
motion, will consider assisting him in securing legal counsel at that time. Consequently,
there is no need for Petitioner to file additional requests for counsel.
II. 	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.
As Petitioner was previously advised, a state prisoner cannot petition for federal
habeas relief without first exhausting his state court remedies. 28 U.S.C. § 2254(b)(1);
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O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state court remedies, “state
prisoners must 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.” Boerckel, 526 U.S. at 845.
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 “[i]f it plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.” See Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 653–55 (11th Cir. 2020).
Although the exhaustion requirement is not jurisdictional, the Court can 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 similar notice and an opportunity to waive that defense. Id. at 653,
654-55 (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) (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”), report and recommendation adopted, 2020 WL 5099937
(S.D. Ala. Aug. 28, 2020).
Petitioner is challenging an August 20, 2025 conviction arising an arrest in
Thomas County, Georgia. (Doc. 26, at 1). Although it is not entirely clear, Petitioner seems
to be challenging either the revocation of his probation, or a conviction for first degree
burglary, or both. Id. In any event, Petitioner entered a guilty plea. Id. at 1, 5. He also
states that he did not file an appeal because he waived his right to an appeal as part of his
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plea agreement with the State. Id. at 5. Petitioner further claims he “exhausted all of [his]
state remedies.” Id.
While it is true that “[a] guilty plea can waive the right to appeal certain issues, . . .
even an unconditional plea of guilty cannot waive a jurisdictional issue[.]” Hill v. State,
710 S.E.2d 667, 669 (Ga. Ct. App. 2011). Examples of jurisdictional issues include “double
jeopardy-type errors” or “whether the plea was voluntarily made and accepted[.]” Id.
(citation omitted). An individual who is convicted following a plea of guilty may pursue a
direct appeal of that guilty plea by filing an application for discretionary review. O.C.G.A.
§ 5-6-35(a)(5.3).3 An individual may also be able to file a motion to withdraw his guilty
plea or a petition for habeas corpus in state court, depending on circumstances and
timing. See Joseph v. Ingram, 915 S.E.2d 877, 882 (Ga. 2025). In this case, however,
Petitioner acknowledges that he did not appeal or “file[] any other petitions, applications,
or motions concerning this judgment of conviction in any state court[.]” (Doc. 26, at 2-3).
As such, it is plain on the face of the Petition that Petitioner has not exhausted his state
remedies, and the Petition should be dismissed for failure to exhaust.
III. 	COA AND IFP 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
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
3 This law became effective in Georgia on May 14, 2025. See, e.g., Peoples v. State, No. A26A0427, 2026 WL
553642, at *1 n.1 (Ga. Ct. App. Feb. 27, 2026). Petitioner’s judgment of conviction was August 20, 2025.
(Doc. 26, at 1).
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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 	this 	showing. 	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
IFP on appeal be DENIED.
IV. 	CONCLUSION
For the foregoing reasons, Petitioner’s motion for appointed counsel (Doc. 28) is
DENIED, 	and 	it 	is 	RECOMMENDED 	that 	Petitioner’s 	§ 	2254 	petition 	be
DISMISSED WITHOUT PREJUDICE for failure to fully exhaust state remedies and
that any COA and motion to proceed IFP on appeal be DENIED. To the extent any of
Petitioner’s other filings relate to the conditions of his confinement, those claims should
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be raised in an action pursuant to 42 U.S.C. § 1983, as was previously explained to
Petitioner.
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 Petition (Doc. 1) and this Order and
Recommendation of Dismissal on the Attorney General and Respondent electronically
through CM/ECF. The Clerk is also DIRECTED to serve a copy of the Petition on
Respondent by U.S. Mail. The Attorney General and the Respondent may, but are not
required to, respond to the Order and Recommendation of Dismissal.
V. 	OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections
to this Recommendation with W. Louis Sands, Senior 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 § 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 4th day of May, 2026.
s/ ALFREDA L. SHEPPARD
UNITED STATES MAGISTRATE JUDGE
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