Walker v. Albright et al (INMATE3)

Filing 7

ORDERED that on or before 5/5/2009, Petitioner shall show cause why her petition should not be dismissed for failure to exhaust state court remedies; Show Cause Response due by 5/5/2009. Signed by Honorable Susan Russ Walker on 4/20/2009. (wcl, )

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 Q U A N D A L A DENISE WALKER, # 261226 P e titio n e r, v. FRANK ALBRIGHT, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) )

Civil Action No. 2:09cv254-TMH (WO)

ORDER T h is cause is before the court on a petition for habeas corpus relief in which P e titio n e r, a state inmate, challenges a sentence imposed upon her by the Circuit Court for C h ilton County, Alabama, a state trial court. Through her petition, Petitioner seeks an award o f jail credit from the aforementioned state court. In their answer filed with this court on A p r i l 20, 2009 (Doc. No. 6), Respondents assert that Petitioner has failed to exhaust state c o u rt remedies with respect to the claims presented in her habeas petition. Specifically, R e sp o n d e n ts allege that Petitioner has not pursued any state post-conviction proceedings c h a lle n g in g her sentence although she has an available state remedy through Rule 32 of the A la b a m a Rules of Criminal Procedure. But see Perkins v. State, No. CR-06-1121, 2007 WL 3 2 2 6 8 1 0 at *1 (Ala. Crim. App. Nov. 2, 2007) (under Alabama law, petition for writ of h a b e as corpus filed in state court is proper method by which to test whether State has c o rre c tly calculated time an inmate must serve in prison) ; Day v. State, 879 So.2d 1206,

1 2 0 7 (Ala. Crim. App. 2003) (same). Federal law directs that a petition for writ of habeas corpus filed by "a person in c u sto d y pursuant to the judgment of a State court shall not be granted unless it appears that th e applicant has exhausted the remedies available in the courts of the [convicting] State...." 2 8 U.S.C. § 2254(1)(b)(1)(A). Upon review of the pleadings filed in this case, it appears that P e titio n e r has not yet exhausted her available state court remedies with respect to each of the c laim s presented in her petition for habeas corpus relief. This court does not deem it a p p ro p ria te to rule on the merits of Petitioner's claims without first requiring that Petitioner e x h a u s t state remedies. See 28 U.S.C. § 2254(1)(b)(2). Accordingly, it is ORDERED that on or before May 5, 2009, Petitioner shall show cause why her p e t itio n should not be dismissed for failure to exhaust state court remedies. D o n e this 20 th day of April, 2009.

/s/Susan Russ Walker SUSAN RUSS WALKER C H IE F UNITED STATES MAGISTRATE JUDGE

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