Hines v. Boyd et al (INMATE 3)

Filing 9

REPORT AND RECOMMENDATION that the 1 Petition for Writ of Habeas Corpus filed by Ronald Hines be dismissed without prejudice to afford Hines an opportunity to exhaust all state court remedies available to him. Objections to R&R due by 12/28/2009. Signed by Honorable Wallace Capel, Jr. on 12/14/2009. (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 N A L D HINES, # 156086, P e titio n e r, v LOUIS BOYD, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) )

Civil Action No. 2:09cv962-TMH (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 t o 28 U.S.C. § 2254 filed on October 13, 2009, by state inmate Ronald Hines ("Hines"). (D o c . No. 1.) In his petition, Hines challenges his guilty plea conviction for unlawful p o s s e ss io n of a controlled substance entered against him in 2009 by the Circuit Court of C o v in g to n County, Alabama. Specifically, he attacks his competency to enter his guilty plea P u rsu a n t to this court's orders, the respondents filed an answer to Hines's petition in w h ic h they argue that Hines has failed to exhaust his state remedies with respect to each of th e claims presented in his habeas petition. (Doc. No. 7.) Specifically, the respondents m a in ta in that Hines has pending in the trial court both a motion to withdraw his guilty plea a n d a state post-conviction petition filed pursuant to Ala.R.Crim.P. 32. This court entered a n order directing Hines to show cause why his petition should not be dismissed for his f a ilu re to exhaust state remedies. (Doc. No. 8.) However, Hines has filed nothing in resp o n se to the court'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 t h 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 Hines has pending in the state trial court a motion to withdraw his guilty plea and a post-conviction petition filed pursuant to Ala.R.Crim.P. 32. H in e s does not state otherwise. It thus appears that Hines has not yet exhausted his state c o u rt remedies with respect to the claims presented in his federal petition. This court does n o t deem it appropriate to rule on the merits of Hines's claims without first requiring thatshe e x h a u s t state remedies. See 28 U.S.C. § 2254(1)(b)(2). Consequently, the court concludes th a t the petition for habeas corpus relief should be dismissed without prejudice so that Hines c a n exhaust his available state court remedies.

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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 Hines 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 f o re December 28, 2009. 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 a l factual findings accepted or adopted by the District Court except upon grounds of p lain 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 14 th day of December, 2009.

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

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