McCants v. Boyd et al (INMATE2)

Filing 12

REPORT AND RECOMMENDATIONS that the petition for habeas corpus relief filed by Dale McCants be DISMISSED without prejudice to afford him an opportunity to exhaust all available state court remedies; Objections to R&R due by 12/17/2008. Signed by Honorable Wallace Capel, Jr on 12/4/2008. (cc, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION _____________________________ D A L E JEROME MCCANTS, #255 910 P e titio n e r, v. L O U IS BOYD, WARDEN, et al., R e s p o n d e n ts . _____________________________ R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE T h is cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief f ile d by Dale McCants ["McCants"], a state inmate, on September 19, 2008. In this petition, M c C a n ts challenges his conviction for second degree assault imposed upon him by the C irc u it Court for Montgomery County, Alabama, on October 2, 2007. Pursuant to an order o f the court, Respondents filed an answer to the petition wherein they maintain that the p re se n t petition is due to be dismissed because McCants has failed to exhaust available state r e m e d i e s with respect to the claims now before this court. Specifically, Respondents m aintain that McCants has a Rule 32 petition pending in the Circuit Court for Montgomery C o u n ty, Alabama. (Doc. No. 8 at 4, Exhs. 8, 9.) U p o n review of the petition, Respondents' answer, and McCants' response, the court c o n c lu d e s that the instant habeas corpus action should be dismissed because McCants has f a ile d to exhaust state remedies with respect to each of the claims raised therein. * * * * * 2:08-CV-783-TMH (WO)

D IS C U S S IO N 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 a p p lic a n t has exhausted the remedies available in the courts of the State . . ." 28 U.S.C. § 2 2 5 4 (1 )(b )(1 )(A ). McCants concedes that he filed a Rule 32 petition in the Circuit Court for M o n tg o m e ry County in July 2008. He complains, however, that he has never received notice f ro m the state court that his petition has been filed. McCants, therefore, deems his state re m e d ie s to be ineffective and futile due to the "unreasonable and unjustified delays [by the s ta te court] in acting on [his] efforts to invoke state remedies." (Doc. No. 11.) Exceptions exist to the exhaustion requirement, i.e., when "there is either an absence o f available state corrective process or the existence of circumstances rendering such process in e f fe c tiv e to protect the right of the prisoner." Howard v. Davis, 815 F.2d 1429, 1430 (11 th C ir. 1987); 28 U.S.C § 2254(b). McCants' arguments, however, fail to fit within the narrow e x c ep tio n to futility, and there is no reason to believe that the Alabama state courts will not g iv e his issues serious consideration in due time. A review of the pleadings and documents filed in this matter clearly demonstrate that M c C a n ts has not yet exhausted his available state court remedies with respect to each claim p re se n te d in the instant habeas petition. This court does not deem it appropriate to rule on th e merits of McCants' claims for relief without first requiring that he exhaust state

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r e m e d i e s.1 See 28 U.S.C. § 2254(1)(b)(2). In light of the foregoing, the Magistrate Judge concludes that the petition for habeas c o rp u s relief should be dismissed without prejudice so that McCants can pursue his available s ta te court remedies. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the petition fo r habeas corpus relief filed by Dale McCants be DISMISSED without prejudice to afford h i m an opportunity to 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 R e c o m m e n d a tio n on or before December 17, 2008. Any objections filed must specifically id e n tif y the findings in the Magistrate Judge's Recommendation to which a party objects. F r iv o lo u s , conclusive or general objections will not be considered by the District Court. The p a rtie s are advised that 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 recommendations in the

McCants is advised that pursuant to the provisions of 28 U.S.C. § 2244(d)(1), a one-year limitation period applies to federal applications for habeas corpus relief. The limitation period begins to run on the date when the time for seeking direct review of the challenged judgment expires but the time during which a properly filed post-conviction petition is pending shall not be counted toward any period of limitation under § 2244(d)(1). A post-conviction petition filed after expiration of the federal limitation period, however, will not toll the one-year period of limitation. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000); Tinker v. Moore, 255 F.3d 1331, 1333-1335 n.4 (11th Cir. 2001).

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Magistrate Judge's report shall bar the party from a de novo determination by the District C o u rt of issues covered in the report and shall bar the party from attacking on appeal factual f in d in g s in the report accepted or adopted by the District Court except upon grounds of plain erro 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 ic h a r d , 661 F.2d 1206 (11 th Cir. 1981) (en banc), adopting as binding precedent all of the d e c is io n s of the former Fifth Circuit handed down prior to the close of business on S e p te m b e r 30, 1981. D o n e , this 4 th day of December 2008.

/s / Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE