Sharmila Melissa Powell v. Belinda Davis , 574 F. App'x 921 ( 2014 )

Case: 13-12403 Date Filed: 09/12/2014 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12403
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00202-LGW-JEG
SHARMILA MELISSA POWELL,
Petitioner-Appellant,
versus
BELINDA DAVIS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 12, 2014)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 13-12403 Date Filed: 09/12/2014 Page: 2 of 3
On November 30, 2012, Sharmila Powell, a Georgia prison inmate serving
concurrent life sentences for felony murder and armed robbery, petitioned pro se
the District Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the
time, Powell had pending in the state trial court a motion for new trial. That is, she
had not yet appealed her convictions to the Georgia Supreme Court.
The District Court dismissed Powell’s petition without prejudice for failure
to exhaust state remedies. She filed a notice of appeal, and a judge of this court
issued a certificate of appealability (COA) on one issue:
Whether the district court erred in dismissing without prejudice
Powell’s 28 U.S.C. § 2254 petition on exhaustion grounds.
Section 2253(c)(2) of Title 28 of the U. S. Code, which governs appeals in
28 U.S.C. § 2254 proceedings, states, in pertinent part:
(a) In a habeas corpus proceeding . . . before a district judge, the final
order shall be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
....
(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from-
-
(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a
constitutional right.
2
Case: 13-12403 Date Filed: 09/12/2014 Page: 3 of 3
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2).
The COA before us does not satisfy the subsection (c)(2) and (3)
requirement because even if we were to assume that Powell has a right to litigate a
§ 2254 petition containing unexhausted claims, such right is not provided by the
U.S. Constitution. And because Powell has not yet sought to appeal her
convictions to the Georgia Supreme Court,1 we cannot know whether Powell’s trial
court denied her a right provided by the U.S. Constitution.
In sum, because the COA does not list as an issue the denial of a federal
constitutional right and because Powell cannot show that the state trial court denied
her such a right, we must vacate the COA as improvidently granted and dismiss
this appeal.
DISMISSED.
1
Cf. Hittson v. GDCP Warden, ___ F.3d ____, 2014 WL 3513033 at ⃰ 14-15 C.A. 11
(Ga.).
3