Opinion
Civil Action No. 1:05-CV-1071-F.
December 6, 2005
RECOMMENDATION OF THE MAGISTRATE JUDGE
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief filed by Willie H. Fedrick, Jr. ["Fedrick"]. The respondents filed an answer in which they assert that the instant habeas petition should be dismissed because Fedrick has failed to exhaust state remedies with respect to the claims pending before this court. Specifically, the respondents contend that Fedrick may present his claims to the state courts in a petition filed pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.
Upon review of the respondents' answer, the court entered an order affording Fedrick an opportunity to demonstrate why his petition should not be dismissed for failure to exhaust state remedies. See Order of November 10, 2005 — Court Doc. No. 10. The petitioner has filed nothing in response to this order.
DISCUSSION
The law is clear that a petition for writ of habeas corpus filed by "a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State . . ." 28 U.S.C. § 2254(1)(b)(1)(A). It is undisputed that Fedrick has not yet exhausted his available state court remedies. This court does not deem it appropriate to rule on the merits of the petitioner's claims for relief without first requiring that the petitioner exhaust state remedies. See 28 U.S.C. § 2254(1)(b)(2).
In light of the foregoing, the Magistrate Judge concludes that the petition for habeas corpus relief should be dismissed without prejudice so that the petitioner can pursue his state court remedies.
CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for habeas corpus relief be denied and that the petition be dismissed without prejudice to afford the petitioner an opportunity to exhaust all available state court remedies. It is further
ORDERED that on or before December 19, 2005 the parties may file objections to the Recommendation. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file written objections to the proposed findings and advisements in the Magistrate Judge's Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings in the Recommendation accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.