Williams v. McCollum et al

Filing 6

ORDER -re: R&R 4 . The court hereby ADOPTS the report and ACCEPTS the recommendations of the magistrate judge. It is ORDERED that this action is due to be and hereby is DISMISSED WITHOUT PREJUDICE to allow petitioner to exhaust available state remedies with respect to his claims. Signed by Judge Abdul K Kallon on 7/14/2015. (AVC)

FILED
2015 Jul-14 PM 04:05
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEMARKULES WILLIAMS,
Petitioner
vs.
HARDY MCCOLLUM, et al.,
Respondents

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Case No. 2:15-cv-00845-AKK-HGD

DISMISSAL ORDER
On June 11, 2015, the magistrate judge’s report and recommendation was
entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. On June 20, 2015,
petitioner filed objections to the magistrate judge’s report and recommendation.
The magistrate judge recommended that the habeas corpus petition be
dismissed without prejudice because petitioner has not exhausted available state
remedies with respect to his claims. The magistrate judge noted that state court
records showed that petitioner had filed a motion for speedy trial in the state district
court; however, there was no indication that he had filed a petition for writ of habeas

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corpus pursuant to Ala. Code § 15-21-1, et seq., seeking a speedy trial,1 or any
petition for writ of mandamus pursuant to Rule 21 of the Alabama Rules of Appellate
Procedure with the Alabama Court of Criminal Appeals seeking an order that he be
tried immediately or that the case against him otherwise proceed.
In his objections, petitioner asserts that he is not required to exhaust every
remedy created by the state. He avers that he mailed a petition for writ of habeas
corpus to the Circuit Court of Tuscaloosa County on December 31, 2014, but that
court does not have any record of the filing. However, petitioner also provides with
his objections a copy of an order dated May 19, 2015, transferring the habeas corpus
petition to the Criminal Division of the Circuit Court of Jefferson County, Bessemer
Division. This is consistent with Ala. Code § 15-21-6(b), which provides that a state
habeas corpus petition is to be addressed to the nearest circuit court judge. Because
petitioner is incarcerated in William E. Donaldson Correctional Facility, the nearest
circuit court judge would be in Jefferson County, Bessemer Division. Further, there
is no indication that petitioner has sought a petition for writ of mandamus pursuant
to Rule 21 of the Alabama Rules of Appellate Procedure with the Alabama Court of
Criminal Appeals seeking an order that he be tried immediately or that the case

1

See Aaron v. State, 497 So.2d 603 (Ala.Crim.App. 1986) (state habeas corpus applies to
contest intrastate detainer).
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against him otherwise proceed. Thus, he still has failed to exhaust available state
remedies or otherwise show that the remedies available are ineffective to protect his
rights. See 28 U.S.C. § 2254(b)(1)(B)(ii).
After careful consideration of the record in this case, the magistrate judge’s
report and recommendation and petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge. It is, therefore, ORDERED, ADJUDGED
and DECREED that this action is due to be and hereby is DISMISSED WITHOUT
PREJUDICE to allow petitioner to exhaust available state remedies with respect to
his claims.
DONE this 14th day of July, 2015.

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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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