Lloyd v. Alabama Department of Corrections et al (INMATE 3)

Filing 21

REPORT AND RECOMMENDATION that the 1 Petition for Writ of Habeas Corpus filed by Robert S. Lloyd be dismissed without prejudice to afford Lloyd an opportunity to exhaust state court remedies available to him. Objections to R&R due by 2/4/2010. Signed by Honorable Terry F. Moorer on 1/19/2010. (dmn)

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 R O B E R T S. LLOYD, # 250886, P e titio n e r, ) ) ) ) ) ) ) ) ) ) ) )

v

Civil Action No. 2:09cv852-ID (WO)

ALABAMA DEPARTMENT OF C O R R E C T IO N , 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 i s cause is before the court on a pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 filed on or around September 8, 2009, by state inmate Robert S. Lloyd (" L lo yd " ). (Doc. No. 1.) In his petition, Lloyd challenges his convictions and sentence for f irs t-d e g re e sodomy and rape entered against him in 2008 by the Circuit Court of Butler C o u n ty, Alabama. P u rsu a n t to this court's orders, the respondents filed an answer to Lloyd's petition in w h ic h they argue that Lloyd has failed to exhaust his state remedies with respect to each of th e claims presented in his habeas petition. (Doc. No. 17.) Specifically, the respondents m a in ta in that the claims in Lloyd's petition are still pending before the state trial court in a p o s t-c o n v ic tio n petition filed pursuant to Ala.R.Crim.P. 32. This court entered an order d irec tin g Lloyd to show cause why his habeas petition should not be dismissed for his failure

to exhaust state remedies. (Doc. No. 18.) However, Lloyd filed nothing in response to the co u rt's order. D IS C U S S IO N The 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 U .S .C . § 2254(1)(b)(1)(A); see O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999) ("Federal h a b e a s relief is available to state prisoners only after they have exhausted their claims in state c o u rt. 28 U.S.C. §§ 2254(b)(1), (c)."). "An applicant shall not be deemed to have exhausted th e remedies available in the courts of the State ... if he has the right under the law of the S tate to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). In order to fully exhaust state remedies, "state prisoners must give the state courts one full o p p o rtu n ity to resolve any constitutional issues by invoking one complete round of the S ta te 's established appellate review process." O'Sullivan, supra, 526 U.S. at 845. Here, the respondents maintain that Lloyd has pending in the state trial court a postc o n v ic tio n petition filed pursuant to Ala.R.Crim.P. 32. Lloyd does not state otherwise. It th u s appears that Lloyd has not yet exhausted his state court remedies with respect to the c la im s presented in his federal petition. This court does not deem it appropriate to rule on th e merits of Lloyd's claims without first requiring that he exhaust state remedies. See 28 U .S .C . § 2254(1)(b)(2). Consequently, the court concludes that the petition for habeas

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c o rp u s relief should be dismissed without prejudice so that Lloyd can exhaust his available s ta te 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 Lloyd an opportunity to e x h a u st all state court remedies available to him. 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 February 4, 2010. A party must specifically identify the findings in the

R e c o m m e n d a tio n to which objection is made; frivolous, conclusive, or general objections w ill not be considered. Failure to file written objections to the Magistrate Judge's proposed f in d in g s and recommendations shall bar a party from a de novo determination by the District C o u rt of issues covered in the Recommendation and shall bar the party from attacking on a p p e al factual findings accepted or adopted by the District Court except upon grounds of p la in error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See S te in 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) D o n e this 19 th day of January, 2010.

/s /T e r r y F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 3