QT. v. Provitt et al(INMATE 2)(JC)

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Q. D. T.; that this case be dismissed without prejudice to afford petitioner an opportunity to exhaust all available state court remedies; Objections to R&R due by 4/18/2005. Signed by Judge Vanzetta P. McPherson on 4/6/05. (ajr, )

QT. v. Provitt et al(INMATE 2)(JC)

Doc. 2

Case 2:05-cv-00296-MHT-VPM

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Filed 04/06/2005

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IN THE UNITED STATES DISTRICT COURT F OR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _______________________________ Q.D .T ., a Minor, Petitioner, v. M ICH AE L PROVITT, WARDEN, et al., Respondents. _______________________________ * * * CIVIL ACTION NO. 2:05-CV-296-T * *

R E C O M M E N D A TI O N OF THE MAGISTRATE JUDGE This cause of action is before the court on a 28 U.S.C. § 2254 petition for habeas c o r p u s relief filed by Q.D.T., a minor, by and through his mother, Barbara Turner. In his p e t i ti o n , Petitioner challenges a final order, judgment, or decree for harassment entered a g a i n s t him by the Juvenile Court of Montgomery County, Alabama, on March 24/31, 2005. U p o n review of the petition, the court concludes that the instant habeas corpus action shou ld be dismissed because Petitioner has failed to exhaust state remedies available on each o f the claims. The Petitioner filed an appeal from the final order, judgment, or decree of the juven ile court with the Circuit Court for Montgomery County, and application is currently pen din g before the state court. (Doc. No. 1, pg. 3.)

D I SC U S S I O N Under Rose v. Lundy, 455 U.S. 509 (1982), before a petitioner may file a petition

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Case 2:05-cv-00296-MHT-VPM

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s e e k i n g habeas relief in federal court, the petitioner must exhaust each claim presented to the f e d e r a l court through remedies available in state court. This exhaustion requirement is

s a t is f i ed by seeking review of the claim in the highest state court with jurisdiction to consider t he claim. 28 U.S.C. § 2254(b) and (c). See O'Sullivan v. Boerckel, 526 U. S. 838 (1999). T h e Petitioner has not yet exhausted all of his available state court remedies. His a p p e a l of his judgment, final order, or decree is currently pending in the Circuit Court for Mo ntgom ery County, Alabama. Thus, the court concludes that this petition for habeas c o r p u s relief should be dismissed without prejudice in order to allow Petitioner to continue to pursue his state court remedies. Both comity and judicial efficiency make it appropriate f o r this court to insist on complete exhaustion before it addresses the issues raised by Petitioner. See Granberry v. Greer, 481 U.S. 129 (1987).

CONCLUSION A c c o r d i n g l y , it is the RECOMMENDATION of the Magistrate Judge that the petition f o r habeas corpus relief be dismissed without prejudice to afford Petitioner an opportunity t o exhaust all available state court remedies. It is further O R D E R E D that the parties are DIRECTED to file any objections to the said R e c o m m e n d a t i o n on or before April 18, 2005. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, c o n c l u s iv e or general objections will not be considered by the District Court. The parties are 2

Case 2:05-cv-00296-MHT-VPM

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a d v i s e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a l a b le . Failu re to file written objections to the proposed findings and recommendations in the M agistrate Judge's report shall bar the party from a de novo determination by the District Cou rt of issues covered in the report and shall bar the party from attacking on appeal factual f i n d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of P r i c h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p t e m b e r 30, 1981. D o n e , this 6 th day of April, 2005.

/ s / Vanzetta Penn McPherson U N I TE D STATES MAGISTRATE JUDGE

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