Russ v. Hughes et al (INMATE3)

Filing 10

ORDER directing that on or before January 12, 2012, Russ shall show cause why his petition should not be dismissed without prejudice for failure to exhaust state remedies. Signed by Honorable Judge Terry F. Moorer on 12/22/11. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
EVANS RUSS, JR., # 194028,
Petitioner,
v.
ANDY HUGHES, et al.,
Respondents.

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Civil Action No. 1:11cv921-WHA
(WO)

ORDER
This cause is before the court on a petition for habeas corpus relief pursuant to 28
U.S.C. § 2254 filed by EVANS RUSS, JR., a state prisoner. In his petition, Russ challenges
his conviction for first-degree burglary and resulting life sentence rendered in the Circuit
Court of Houston County, Alabama, on October 6, 2011.
In their answer filed with this court on December 22, 2011 (Doc. No. 9), the
respondents contend that Russ has failed to fully exhaust his claims through available state
court proceedings. Specifically, the respondents assert that Russ currently has a direct appeal
of his conviction pending in the Alabama Court of Criminal Appeals awaiting completion
of the court reporter’s transcript of trial proceedings. (Doc. No. 9 at 4.)
It is a longstanding prerequisite to the filing of a federal habeas corpus petition that
the petitioner have exhausted available state court remedies, 28 U.S.C. § 2254(b)(1), thereby
giving the State the “‘opportunity to pass upon and correct’ alleged violations of its
prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v.

Connor, 404 U.S. 270, 275 (1971) (citation omitted)).

“To satisfy the exhaustion

requirement, the petitioner must have fairly presented the substance of his federal claim to
the state courts.” Picard, 404 U.S. at 277-78. To fully exhaust, “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.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (citing 28 U.S.C. § 2254(c)).
Upon review of the pleadings filed in this case, it appears that Russ has not exhausted
his available state court remedies with respect to the claims presented in his petition for
habeas corpus relief. This court does not deem it appropriate to rule on the merits of Russ’s
claims without first requiring that he exhaust state remedies. See 28 U.S.C. § 2254(1)(b)(2).
Accordingly, it is
ORDERED that on or before January 12, 2012, Russ shall show cause why his
petition should not be dismissed without prejudice for failure to exhaust state remedies.
Done this 22nd day of December, 2011.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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