Jones v. Mosley et al (INMATE 1)

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the 1 Petition for Habeas Corpus relief be denied and that the petition be dismissed without prejudice to afford the petitioner an opportunity to exhaust all available state court remedies; Objections to R&R due by 10/18/2006. Signed by Judge Delores R. Boyd on 10/5/06. (wcl, )

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Jones v. Mosley et al (INMATE 1) Doc. 10 Case 2:06-cv-00821-MHT-DRB Document 10 Filed 10/05/2006 Page 1 of 3 IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION LA R Y IE EARL JONES, #156610, Petitioner, v. G W E N D O L Y N MOSLEY, et al., Respondents. ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:06-CV-821-MHT R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is cause of action is before the court on a 28 U.S.C. 2254 petition for habeas c o rp u s relief filed on August 31, 2006, by Laryie Earl Jones ["Jones"], a state inmate, to c h a l l e n ge his convictions on May 25, 2006, in the Circuit Court of Covington County for p o s s e ss io n of cocaine and possession of drug paraphernalia. R e sp o n d e n ts contend that although Jones filed a notice of appeal on July 12, 2006, h e "has not completed the appellate process available to him in the state court system." R e sp o n d e n ts ' Answer - Court Doc. No. 9 at 3. The state court record supports this co n tention . See Respondents' Exhibit A - Alabama Court of Criminal Appeals Docket Sheet. D IS C U S S IO N 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 Dockets.Justia.com Case 2:06-cv-00821-MHT-DRB Document 10 Filed 10/05/2006 Page 2 of 3 U .S.C . 2254(1)(b)(1)(A). "An applicant shall not be deemed to have exhausted the re m e d ies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. 2254(c). A section 2 2 5 4 petition for habeas corpus relief is not ripe for review by a federal court where the c h a lle n ge d state convictions and sentences are not final at the time of filing. Maharaj v. S e c re ta r y for Department of Corrections, 304 F.3d 1345, 1348-1349 (11 th Cir. 2002); Yo u n g e r v. Harris, 401 U.S. 37, 46 (1971) (federal courts must adhere to the "fundamental p o licy against federal interference with state criminal proceedings."). T h e pleadings and supporting documents establish that Jones has not yet exhausted h is available state court remedies. Jones may raise the claims here presented in the direct a p p e al pending before the Alabama Court of Criminal Appeals, and upon conclusion of the d ire c t appeal process, he may file a post-conviction petition pursuant to Rule 32 of the Alab am a Rules of Criminal Procedure. This court does not deem it appropriate to rule on the merits of the asserted claims without requiring that Jones first exhaust state remedies. See 28 U.S.C. 2254(1)(b)(2). M o re o ve r, a stay of this case is not warranted pending the outcome of state court proceedings a s this court is presented no "good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 1535 (2005). CONCLUSION A c co rd in gly , it is the RECOMMENDATION of the Magistrate Judge that the petition fo r habeas corpus relief be denied and that the petition be dismissed without prejudice to 2 Case 2:06-cv-00821-MHT-DRB Document 10 Filed 10/05/2006 Page 3 of 3 a ffo rd the petitioner an opportunity to exhaust all available state court remedies. It is further O R D E R E D that on or before October 18, 2006 the parties may file objections to the R e c o m m e n d atio n . Any objections filed must specifically identify the findings in the M a gis tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from attacking o n appeal factual findings in the Recommendation accepted or adopted by the District Court ex ce p t upon grounds of plain error or manifest injustice. Nettles v. WainPrice, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also B o n n e r v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding p re c ed e n t all of the decisions of the former Fifth Circuit handed down prior to the close of b u s in e ss on September 30, 1981. Done this 5th day of October, 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE 3

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