Jenkins v. Patterson et al (INMATE3)

Filing 12

ORDER that the plaintiff show cause why the Petition should not be dismissed for failure to exhaust state remedies. Show Cause Response due by 10/20/2010. Signed by Honorable Terry F. Moorer on 9/29/2010. (br, )

J e n k i n s v. Patterson et al (INMATE3)

D o c . 12

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION R IC H A R D J. JENKINS, # 138355, P e titio n e r, v TONY PATTERSON, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) ) ORDER T h i s cause is before the court on a petition for habeas corpus relief pursuant to 28 U .S .C . § 2254 filed by state prisoner Richard J. Jenkins ("Jenkins"). By his petition, Jenkins ch allen g es convictions for capital murder entered against him in 2006 by the Circuit Court o f Geneva County, Alabama. In an answer filed with this court (Doc. No. 11), the

Civil Action No. 1:10cv709-WHA (WO)

resp o n d en ts assert, among other things, that Jenkins has failed to exhaust his state court re m e d ies with respect to the claims in his habeas petition. Specifically, the respondents m a in ta in that Jenkins is currently attacking his murder convictions through a Rule 32 petition f iled with, and pending in, the Geneva County Circuit Court. T h e law directs that a petition for writ of habeas corpus filed by "a person in custody p u rs u a n t to the judgment of a State court shall not be granted unless it appears that the a p p lic a n t has exhausted the remedies available in the courts of the [convicting] State...." 28 U .S .C . § 2254(1)(b)(1)(A). Upon review of the pleadings filed in this case, it appears that

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J e n k in s may not have exhausted his available state court remedies with respect to all claims p re se n ted in his petition for habeas corpus relief. This court does not deem it appropriate to r u le on the merits of the petitioner's claims without first requiring that a petitioner exhaust s ta te remedies. See 28 U.S.C. § 2254(1)(b)(2). Accordingly, it is ORDERED that on or before October 20, 2010, Jenkins shall show cause why his p e t itio n should not be dismissed without prejudice for failure to exhaust state remedies. D o n e this 29 th day of September, 2010.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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