Tracy Anthony Miller v. Buddy D. Nix, Jr. ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15320 APRIL 23, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 08-01966-CV-TWT-1
TRACY ANTHONY MILLER,
Petitioner-Appellant,
versus
BUDDY D. NIX, JR.,
Chairman, Board of Pardons and Parole Member,
HILTON HALL, Warden,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 23, 2009)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Tracy Anthony Miller, a state prisoner, appeals pro se the dismissal of his
petition for a writ of habeas corpus. 28 U.S.C. § 2241. The district court
dismissed Miller’s petition on procedural grounds and later granted Miller a
certificate of appealability to address the merits of one issue in the petition. We
vacate the order that granted Miller a certificate of appealability and remand.
Miller filed a petition for a writ of habeas corpus that challenged the denial
of parole by the Georgia Board of Pardons and Paroles. Miller argued that the
Board applied retroactively new rules and regulations that violated his rights to due
process, equal protection, and the Ex Post Facto clause, and increased his
punishment in violation of the Eighth Amendment. A magistrate judge
recommended that the district court dismiss sua sponte Miller’s petition on the
ground that Miller’s complaint was not cognizable in a petition for a writ of habeas
corpus. In the alternative, the magistrate judge dismissed the petition because
Miller failed to exhaust his state remedies. The district court overruled Miller’s
objections, adopted the recommendation of the magistrate judge, and dismissed
Miller’s petition.
Miller filed a notice of appeal and repeated two issues that he raised in his
petition for a writ of habeas corpus. Miller argued that the retroactive application
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of new rules to his application for parole violated the Ex Post Facto clause and the
extension of his sentence constituted cruel and unusual punishment. The district
court treated Miller’s notice of appeal as a motion for a certificate of appealability
and granted a certificate to address “whether the Parole Board . . . violated
[Miller’s] rights under the Ex Post Facto clause of the United States Constitution.”
The district court did not mention in its order the procedural grounds for the
dismissal of Miller’s petition.
We will not address the merits of Miller’s petition. “When a district court
dismisses a petition [on procedural grounds], it is inappropriate to grant a
[certificate] on the constitutional claim . . . .” Ross v. Moore, 246 F.3d 1299, 1300
(11th Cir. 2001). We VACATE the order that granted Miller a certificate of
appealability and REMAND to the district court for the limited purpose of
determining if a certificate of appealability should be granted to address (1)
whether Miller can challenge the denial of parole by the state parole board in a
petition for a writ of habeas corpus and (2) whether Miller failed to exhaust his
state remedies.
VACATED and REMANDED.
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