Savage v. Marshall et al (INMATE 1)

Filing 4

REPORT AND RECOMMENDATIONS that the 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. On or before 10/3/06 the parties may file objections to the Recommendation. Signed by Judge Delores R. Boyd on 9/20/2006. (cb, )

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Savage v. Marshall et al (INMATE 1) Doc. 4 Case 2:06-cv-00827-MHT-DRB Document 4 Filed 09/20/2006 Page 1 of 4 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION THOMAS M. SAVAGE, Petitioner, v. ) ) ) ) ) CIVIL ACTION NO. 2:06-CV-827-MHT ) [W O ] ) ) ) ) D. T. MARSHALL, et al., Respondents. RECOMMENDATION OF THE MAGISTRATE JUDGE T h is cause is before the court on a 28 U.S.C. 2254 petition for habeas corpus relief file d on September 15, 2006, by Thomas M. Savage ["Savage"], an inmate confined at the M o n tgo m e ry County Detention Facility. Savage purports to challenge a recent conviction in the Circuit Court of Montgomery County for theft of property. Because it is clear from h is own averments that Savage has failed to exhaust state remedies with respect to each a ss e rte d claim, the Magistrate Judge recommends dismissal without prejudice and prior to s e rvic e of process. I. D IS C U S S IO N A. T he Petition D e sign a tin g the Montgomery County Sheriff, D.T. Marshall, a sheriff's deputy, Gina Dockets.Justia.com Case 2:06-cv-00827-MHT-DRB Document 4 Filed 09/20/2006 Page 2 of 4 M . Savage, and Alabama's Attorney General as defendants, Petitioner Savage well known in this federal court as a frequent filer of frivolous lawsuits purports to challenge a state c o n vic tio n for "use of defense spray and theft of property." His stated basis for federal ju r is d ic tio n is labeled " ineffective assistance of counselor" and is "supported by" these a lle ge d facts: T h e Circuit Court of Montgomery County, Alabama appointed Aimee C. Sm ith , as Attorney at Law, on the 8-22-06, to represent the Petitioner, but, it a p p e a rs from the face of the State of Alabama's Affidavit, Warrant of Arrest, C o m p lain t, Indictment, that the Attorney are acting in concert with the Deputy D is tric t Attorney, Thomas Fields, Chris Colee, Kevin Davidson, State of A la b a m a judge, William A. Shashy. Sa va ge admits that he has not pursued in the Montgomery County Circuit Court any p ro c e ed in gs to remedy either the appointment of his attorney or presumably his conviction b a r e ly a month ago; nor has he filed any direct appeal to a higher state court or otherwise ex h au sted any available state remedies for his alleged grievance. B. Controlloing Law The law is clear 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 ap p lica n t has exhausted the remedies available in the courts of the State . . ." 28 U.S.C. 2 2 5 4 (b )(1 )(A ). "An applicant shall not be deemed to have exhausted the remedies available 2 Case 2:06-cv-00827-MHT-DRB Document 4 Filed 09/20/2006 Page 3 of 4 in the courts of the State . . . if he has the right under the law of the State to raise, by any availab le procedure, the question presented." 28 U.S.C. 2254(c). T h e habeas petition demonstrates that Savage has not yet exhausted his available state c o u rt remedies with respect to the purported federal claims presented. The time allowed Sa v a g e to file a direct appeal of his conviction has not yet expired. Additionally, upon c o n c lu s io n of the direct appeal process, Savage may file a state post-conviction petition p u rsua n t to Rule 32 of the Alabama Rules of Criminal Procedure. This court does not deem it appropriate to rule on the merits of Savage's claims for relief without first requiring that the petitioner exhaust state remedies. See 28 U.S.C. 2 2 5 4 (1 )(b )(2 ). Moreover, a stay of this case is not warranted pending the outcome of Sa va ge 's state court proceedings as there is nothing before this court which indicates "good c a u se for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber, 5 4 4 U.S. 269, 277, 125 S.Ct. 1528, 1535 (2005). II. C O N C L U SIO N A c c o rd in gly , it is the RECOMMENDATION of the Magistrate Judge that the p e titio n for habeas corpus relief be denied and that the petition be dismissed without p r e ju d ic e to afford the petitioner an opportunity to exhaust all available state court remedies. 3 Case 2:06-cv-00827-MHT-DRB Document 4 Filed 09/20/2006 Page 4 of 4 It is further ORDERED that on or before October 3, 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 a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v. W a in S a v a g e , 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. Done this 20 th day of September, 2006. /s / Delores R. Boyd D E LO R E S R. BOYD U N IT E D STATES MAGISTRATE JUDGE 4

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