Whitt v. Wheeler-White et al (INMATE3)

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the petition for habeas corpus relief be dismissed without prejudice to afford Whitt an opportunity toexhaust all state court remedies available to her. Objections to R&R due by 7/7/2009. Signed by Honorable Wallace Capel, Jr on 6/23/2009. (cb, )

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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 T A R A WHITT, # 262993, P e titio n e r, v CYNTHIA S. WHEELER-WHITE, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:09cv487-ID (WO) 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 pro se petition for habeas corpus relief pursuant to 28 U.S.C. 2254 filed on May 11, 2009, by state inmate Tara Whitt ("Whitt").1 (Doc. No. 1 .) By her petition, Whitt challenges matters related to a sentence for unlawful possession o f a controlled substance that was imposed against her in 2008 by the Circuit Court for E lm o re County, an Alabama trial court. Whitt asserts that she is entitled to credit against her s e n te n c e for time spent out on bond prior to trial and that she is also entitled to earn incentive g o o d time credit on the split sentence she received. T h e respondents filed an answer to Whitt's petition in which they argue, among other th in g s, that the petition should be dismissed because Whitt has not exhausted her available 1 Although Whitt's petition is date-stamped as "received" by this court on May 22, 2009, she signed the petition on May 11, 2009. Under the mailbox rule, a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-72 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999). "Absent evidence to the contrary in the form of prison logs or other records, [this court] must assume that [the instant petition] was delivered to prison authorities the day [Whitt] signed it." Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001). sta te court remedies for each of her claims. (Doc. No. 5) Whitt was allowed an opportunity to reply to the respondents' answer, and in so doing, she makes the cursory assertion that she h a s exhausted her state remedies. (Doc. No. 9.) However, a review of her federal habeas p e titio n reveals that Whitt has not in fact not properly exhausted her state court remedies. DISCUSSION T h e law directs that a petition for writ of habeas corpus filed by "a person in custody p u r s 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 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). Whitt c o n te n d s that she is entitled to credit against her sentence for time spent out on bond prior to trial and that she is entitled to earn incentive good time credit on her split sentence. Under A la b a m a law, a petition for a writ of habeas corpus filed in state court is the proper method b y which to test whether the State has correctly calculated the time an inmate must serve in p ris o n . Day v. State, 879 So.2d 1206, 1207 (Ala. Crim. App. 2003); see also Perkins v. State, N o . CR-06-1121, 2007 WL 3226810 at *1 (Ala. Crim. App. Nov. 2, 2007). Notwithstanding h e r cursory statement in her reply to the respondents' answer that she has exhausted her state c o u rt remedies, Whitt indicates in her petition that she has not in fact exhausted her state c o u rt remedies. Specifically, with respect to each of her claims, she expressly acknowledges 2 th a t she has not raised the issue through a post-conviction motion or petition for habeas c o rp u s in a state trial court. (See Doc. No. 1 at 6-12.) This court does not deem it appropriate to rule on the merits of Whitt's claims without f irs t requiring that she exhaust state court remedies. See 28 U.S.C. 2254(1)(b)(2). C o n s e q u e n tly, the court concludes that the petition for habeas corpus relief should be d i sm is s e d without prejudice so that Whitt can pursue her available state court remedies. C O N C L U SIO N A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that the petition f o r habeas corpus relief be dismissed without prejudice to afford Whitt an opportunity to e x h a u st all state court remedies available to her. It is further O R D E R E D that the parties shall file any objections to this Recommendation on or b e fo r e July 7, 2009. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be c o n sid e re d . Failure to file written objections to the Magistrate Judge's proposed findings and re c o m m e n d a tio n s shall bar a party from a de novo determination by the District Court of is s u e s covered in the Recommendation and shall bar the party from attacking on appeal f a ctu a l findings accepted or adopted by the District Court except upon grounds of plain error o r manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v. R e y n o ld s Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). P r ic h a r d ,6 6 1 F.2d 1206 (11 th Cir. 1981) (en banc). See also Bonner v. City of 3 D o n e this 23 r d day of June, 2009. /s/Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE 4

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