Sims v. Giles et al

Filing 9

ORDERED that on or before October 22, 2010, the petitioner shall show cause whyhis petition should not be dismissed for failure to exhaust state remedies. Signed by Honorable Charles S. Coody on 10/8/2010. (cb, )

- C S C Sims v. Giles et al (INMATE 3)

Doc. 9

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 D A V ID RICHARD SIMS, # 155998, P e titio n e r, v. J .C . GILES, et al., R e s p o n d e n ts . ) ) ) ) ) ) ) ) ) )

Civil Action No. 3:10cv757-TMH (WO)

ORDER In their answer filed with this court on October 6, 2010 (Doc. No. 8), the respondents a s s e rt that the petitioner has failed to exhaust state remedies with respect to the claims p re se n te d in his federal habeas petition. Specifically, the respondents maintain that the p e titio n e r may challenge the calculation of his jail credit and minimum release date from an A la b a m a penitentiary in the appropriate state circuit court via a state habeas corpus petition (D o c . No. 8 at 3). See Ex parte Boykin, 862 So.2d 587 (Ala. 2002); Montgomery v. State, 9 6 7 So.2d 103 (Ala. Crim. App. 2007). T h e law directs that a federal 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 th e petitioner has not yet exhausted his available state court remedies with respect to the c la im s presented in his federal petition for habeas corpus relief. This court does not deem

Dockets.Justia.com

it appropriate to rule on the merits of the petitioner's claims for relief without first requiring that he exhaust available state remedies. See 28 U.S.C. § 2254(1)(b)(2). A c c o r d in g ly, it is ORDERED that on or before October 22, 2010, the petitioner shall show cause why h i s petition should not be dismissed for failure to exhaust state remedies. D o n e this 8 th day of October, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

2