Black v. Forniss et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/12/2013. (PSM)

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FILED 2013 Dec-12 AM 08:23 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHWESTERN DIVISION MICHAEL EUGENE BLACK, Petitioner, vs. LEON FORNISS, Warden; and THE ATTORNEY GENERAL OF ALABAMA, Respondents. ) ) ) ) ) ) ) ) ) ) 3:13-cv-1186-AKK-PWG MEMORANDUM OPINION This is a petition for writ of habeas corpus brought by Michael Eugene Black (“Petitioner”) pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 state court conviction for first degree assault and leaving the scene of an accident on eleven grounds. (Doc. # 1-1). In response to the previously-assigned magistrate judge’s order to show cause, Respondents argue that Petitioner has failed to exhaust his state-law remedies because (1) Petitioner’s direct appeal presented only one of the grounds asserted in the instant petition, and (2) Petitioner has not filed a post-conviction habeas petition in state court. (Doc. # 6 at 5-7). Petitioner does not challenge Respondents’ contentions, and, in fact, concedes that “[g]rounds 2 through 11 were not presented in Direct Appeal.” (Doc. # 1-1 at 11). Additionally, the petition reveals that Petitioner has not filed a post-conviction petition for habeas corpus in state court. (See id. at 3, 5, 7-8, 10, 12). The parties also agree that Petitioner’s conviction became final on April 12, 2013, when the certificate of judgment issued. (Doc. # 6-3 at 1; see Doc. # 1-1 at 2). In light of these facts, the court agrees with Respondents that the Petition is due to be dismissed without prejudice. (See Rose v. Lundy, 455 U.S. 509, 510 (1982) (stating that “a district court must dismiss” a habeas petition “containing any claims that have not been exhausted in state courts”) (emphasis added)). Because Petitioner has not filed a post-conviction motion under Ala. R. Crim. P. 32, and because such a motion would not be time-barred, Petitioner has not fully exhausted his claims in state court. Id. As such, this court must dismiss the instant petition without prejudice. Id. An appropriate order will be entered. DONE this 12th day of December, 2013. ________________________________ ABDUL K. KALLON UNITED STATES DISTRICT JUDGE 2

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