Opinion
Civil Action No. 00-541-AH-S
July 17, 2000
RECOMMENDATION OF MAGISTRATE JUDGE
In Respondent's Answer (Doc. 5), Respondent asserts that Petitioner's state court conviction and sentence became final on October 22, 1999, when the Alabama Court of Criminal Appeals affirmed Petitioner's conviction. According to Respondent, Petitioner has not filed a petition seeking relief under Rule 32 of the Alabama Rules of Criminal Procedure. Therefore, Petitioner still has remedies available to him through the state courts. Pursuant to 28 U.S.C. § 2254 (b)(1), "[a]n application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the state. . . ." Accordingly, it is the recommendation of the undersigned Magistrate Judge, that Petitioner's habeas corpus petition be dismissed so that Petitioner can exhaust his available state court remedies pursuant to 28 U.S.C. § 2254.
Petitioner should be aware of the provisions of 28 U.S.C. § 2244 (d)(1)(A) and (2) which provides that
a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
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(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.