Opinion
CA 00-0473-RV-C
December 5, 2000.
REPORT AND RECOMMENDATION
James A. Scudder, a state prisoner presently in the custody of the respondent, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 25, 2000. (Doc. 1) After service of that complaint, respondent filed an answer on August 23, 2000 and therein contends that petitioner has not exhausted any of his fifty claims in state court. (Doc. 23) Petitioner filed a very speedy response to the respondent's answer. (Doc. 25 (filed August 25, 2000))
Concurrently with the filing of the complaint, petitioner filed the following documents: (1) motion to proceed without prepayment of fees and costs (Doc. 2); (2) a memorandum in support of his habeas corpus petition (Doc. 3); (3) a memorandum of law anticipating the respondent's exhaustion argument (Doc. 4 ("MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AS TO ISSUE OF EXHAUSTION OF ALL STATE REMEDIES")); (4) a motion to proceed pro se regarding his habeas corpus petition (Doc. 5); (5) a writ of habeas corpus ad testificandum (Doc. 6); (6) a motion to stay all state proceedings (Doc. 7); (7) a motion to allow the taking of depositions (Doc. 8); (8) a motion for written discovery (Doc. 9); and (9) a motion for immediate release from incarceration and automatic grant of reversal of all convictions (Doc. 10).
Between May 25, 2000 and August 23, 2000, petitioner filed a supplemental motion to stay all state proceedings (Doc. 11 (filed on or about June 21, 2000)), a notice of additional records (Doc. 14 (filed June 28, 2000)) and two objections to requests for additional time made by the respondent ( see Docs. 17 21).
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint. 28 U.S.C. § 636 (b)(1)(B); 28 U.S.C. foll. § 2254, Rule 8(b)(1). After a complete review of this action, it is determined that it is premature and should be dismissed as unexhausted.
FINDINGS OF FACT
1. In the instant habeas corpus petition, Scudder is challenging the validity of his October 7, 1999 convictions on two counts of stalking and one count of harassment. (Doc. 1) Petitioner was sentenced on October 29, 1999 to concurrent five-year sentences on the stalking convictions and a concurrent one-year sentence on the harassment conviction. ( See Doc. 23, Exhibits A-C)
Concurrent with the entry of this report and recommendation, the undersigned will enter an almost identical report and recommendation in Scudder's habeas corpus challenge to his October 8, 1999 convictions in the Circuit Court of Baldwin County, Alabama on several counts of second-degree possession of forged instruments. ( See Scudder v. Owens, CA 00-0474-RV-C).
2. Scudder entered oral notice of appeal on October 29, 1999 and on November 16, 1999, Rusty Pigott, Esquire, was appointed to represent petitioner on appeal. ( See id.) On November 29, 2000 petitioner filed a motion for judgment of acquittal or, in the alternative, a motion for new trial and, in addition, filed a waiver of counsel. ( See id.) The motion for new trial was denied on December 7, 1999, save with respect to the ground alleging ineffective assistance of trial counsel which was set for a hearing on January 19, 2000. (Doc. 23, Exhibits A-C) Petitioner requested a continuance of this hearing on January 4, 2000. ( See id.) The trial judge entered the following order on the case action summary sheet on January 6, 2000: "It having been called to the Court's attention by the Clerk's office that under Rule 24.4 ARCrP, the portion of the motion for a new frial not ruled upon by the Court on 12/7/99 was denied by operation of law on 12/28/99. Therefore this court no longer has jurisdiction. Motions filed 1/4/2000 by defendant should be forwarded to the Clerk of the Court of Criminal Appeals." (Doc. 23, Exhibit A)
Concurrent therewith, Scudder served upon Pigott, the Clerk of the Alabama Court of Criminal Appeals and the Baldwin County District Attorney a "Notice of Termination of Counsel and to Represent Self Pro-Se[.]" ( See Doc. 23, Exhibit F, Appellant's Notice of Termination of Counsel and to Represent Self Pro-Se).
3. On February 23, 2000, Pigott wrote the following letter to Scudder:
I have received numerous letters and copies of motions from you over the last several months. I received the first notice of my appointment to represent you on or about November 23, 1999. On or about November 27, 1999, I received a letter from you with copies of motion, indicating your termination of my representation of you.
In accordance with your notice, I did not take any action on your behalf. Consequently, I did not receive and do not have any documents regarding your case.
In you letter of February 10, 2000, you assume that I filed a motion for new trial in your case. As I stated, I did not file anything in any of your cases. I reviewed the Clerk's file and it appears that this motion was actually filed by you.
I can assure you that I have no involvement in any of your cases. Kindly refrain from sending me any further correspondence.
(Doc. 23, Exhibit D, February 23, 2000 Letter)
4. On March 29, 2000, the following order was entered by the presiding judge of the Alabama Court of Criminal Appeals, Francis A. Long, Sr.:
The appellant has filed numerous pro se motions in this cause. Our records indicate that the appellant is represented by appointed counsel, Hon. James Russell Pigott.
This Court notes that the United States Supreme Court, in Martinez v. California, [No. 98-7809, January 12, 2000] ___ U.S. ___ (2000), has recently determined that there is no federal constitutional right to self-representation on direct appeal, and based on the reasoning in that case, this Court finds that the appellant has no such right under Alabama's constitution.
Upon consideration of the above, the Court of Criminal Appeals finds that the appellant has no authority to remove the counsel appointed to represent him in this cause, and therefore ORDERS that Mr. Pigott shall continue as counsel for the appellant in this appeal until otherwise ordered by this Court, notwithstanding any notices or directions to the contrary that he has or may receive from the appellant.
It is further ORDERED that the pro se motions/notices filed by the appellant in this cause are returned to the appellant herewith.
(Doc. 23, Exhibit H) Thereafter, on April 3, 2000, the Clerk of the Alabama Court of Criminal Appeals returned to Scudder several pro se motions. ( Id., Exhibit D, April 3. 2000 Letters)
5. On or about April 7, 2000, Pigott filed a motion to withdraw in the Alabama Court of Criminal Appeals. ( Id., Exhibit F, MOTION TO WITHDRAW)
1. On March 29, 2000, this Court entered an Order directing undersigned counsel to continue representing the Appellant until otherwise ordered by this Court, notwithstanding any notices and directions to the contrary that he has or may receive from the Appellant.
2. The Appellant has communicated his desire that undersigned counsel not represent him in this case in correspondence dated November 26, 1999, December 2, 1999, January 17, 2000 and April 2, 2000.
3. In the April 2, 2000 letter, the Appellant states to undersigned counsel:
". . . You are, under no circumstances, to even think of handling my appeal in any fashion or in any respect whatsoever. In fact, no appointed "lawyer" is to represent me in any respect concerning this appeal."
"If you or any other attorney starts to process my appeal, I will file a Bar Disciplinary Complaint and file suit in Federal Court. . . ."
4. The Clerk's record and the transcripts in this case were mailed directly to the Appellant in the State Penitentiary and consequently, counsel has not had the opportunity to review the same.
5. Given the circumstances attendant to this case, and the Appellant's clearly stated desire not to have undersigned counsel represent him, counsel moves this Court for leave to withdraw.
( Id.) This motion was denied by order dated April 12, 2000 ( id., Exhibit F, April 12, 2000 ORDER); however, the time for filing a brief on appeal was extended to April 26, 2000 ( id.).
6. On or about April 11, 2000, Scudder filed a pro se petition for writ of mandamus in the Alabama Supreme Court. (Doc. 23, Exhibit D) This prompted Pigott to file a motion to stay proceedings in the Alabama Court of Criminal Appeals pending mandamus review by the Alabama Supreme Court. ( Id., Exhibit F, Motion to Stay Pending Mandamus Review ("The primary issue the Appellant raises in said Petition [for Writ of Mandamus] is his right, as a pro se appellant, to represent himself on direct appeal. This Court should wait until the Alabama Supreme Court resolves this issue before requiring any further action.")) The Alabama Court of Criminal Appeals, however, denied the motion to stay by order entered on April 28, 2000. ( Id., April 28, 2000 ORDER)
7. On or about May 4, 2000, Pigott filed in the Alabama Supreme Court a "Petition for Writ of Mandamus to the Court of Criminal Appeals[.]" (Doc. 23, Exhibit F ("Further, time is of the essence, given that Appellant's initial brief to the Court of Criminal Appeals is due May 10, 2000."))
8. The Alabama Supreme Court entered the following order on May 24, 2000.
The petitions of James A. Scudder and J. Russell Pigott for writ of mandamus to be directed to the Honorable Charles C. Partin, Judge of the Circuit Court of Baldwin County, and to the Alabama Court of Criminal Appeals having been filed and submitted to the Court,
IT IS ORDERED, as follows:
1. That the respondents, Judge Charles C. Partin, the Alabama Court of Criminal Appeals and the State of Alabama, file with the Clerk of this Court their answers to the said petitions, a copy of which appears to have been served on them, or their attorneys, on February 21, 2000, April 11, 2000, and May 4, 2000, with briefs in support of said answers, within fourteen (14) days from the date of this order; and
2. That the petitioners shall file a brief in reply to respondents' answers and briefs within seven (7) days from the date of service of respondents' answers and briefs.
IT IS FURTHER ORDERED that all proceedings in the Alabama Court of Criminal Appeals case no. 99-302, are stayed pending the disposition of these petitions for writ of mandamus.
IT IS FURTHER ORDERED that the Clerk of this Court shall serve a copy of this order upon all parties to this cause, or their attorneys of record, by mailing a copy thereof to them by United States mail, postage prepaid.
((Doc. 23, Exhibit G)
9. Scudder filed his writ of habeas corpus in this Court on May 25, 2000. (Doc. 1)
10. On July 5, 2000, the Alabama Supreme Court issued a notice advising all concerned parties that it was taking the cause under submission on the petition, answer and briefs. (Doc. 23, Exhibit I)
CONCLUSIONS OF LAW
1. A petition for habeas corpus relief must be dismissed unless the petitioner has exhausted the remedies available to him in state court. 28 U.S.C. § 2254 (b)(1)(A). Section 2254(c) provides that a petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented."
2. "[T]he state prisoner must give the state court an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 626 U.S. 838, ___, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999). Inmates have met the exhaustion requirement once their federal claims have been fairly presented to the state courts. Heath v. Jones, 863 F.2d 815, 818 (11th Cir. 1989). The issues presented to the state courts must be precisely the same as those presented in the federal habeas action. Id.; see also Footman v. Singletary, 978 F.2d 1207, 1210-1211 (11th Cir. 1992).
3. If a petitioner has exhausted some claims but not others, his petition is "mixed" and must be dismissed, Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982), unless petitioner elects to proceed, at his peril, on the exhausted claims. Id. at 520, 102 S.Ct. at 1204; see also In re Lindsey, 875 F.2d 1502, 1506 (11th Cir. 1989).
4. It is all to clear that petitioner has failed to exhaust his state remedies with respect to all of the fifty claims raised in this habeas corpus petition. Scudder has admitted that he has not exhausted his state remedies but lays blame for his failure to exhaust on the state of Alabama and the state courts of Alabama. ( See Doc. 25 ("AT THE TIME SCUDDER FILED THESE PETITIONS ANDMEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AS TO ISSUE OF EXHAUSTION OF ALL STATE REMEDIES ON MAY 23, 2000, THE STATE HAD ROADBLOCKED ALL OF SCUDDER'S AVENUES OF REMEDIES. . . . IT WAS NOT UNTIL 8-8-00, THAT THE SUPREME COURT OF ALABAMA ISSUED AN ORDER GRANTING SCUDDER UNTIL AUGUST 15, 2000, TO FILE HIS REPLY BRIEF, AND THE SOLE REASON THE SUPREME COURT REACTED ON 8/8/00 WAS DUE TO SCUDDER HAVING FILED HISMOTION TO SUSPEND ALL PROCEEDINGS ON 8/2/00 (EX. # 39) WHEREIN SCUDDER ACCUSED THE A.D.O.C. OF INTENTIONALLY INTERFERING WITH HIS INCOMING LEGAL MAIL, IN PARTICULAR SCUDDER'S REPLY BRIEF AND EXHIBITS HE HAD SENT OUT FOR COPYING. . . . SHOULD SUPREME COURT RULE SCUDDER NOT ENTITLED TO REPRESENT HIMSELF ON APPEAL THEN NO-MERIT APPEAL FOR SURE BECOMES PART OF THE RECORD THEREBY WIPING OUT SCUDDER'S RIGHTS IN THE UNDERLYING ISSUES CONTAINED IN HIS THREE PETITIONS FOR WRIT OF MANDAMUS."))
5. Scudder is presently in the process of his appeal as of right in the state courts of Alabama, as statutorily recognized, Ala. Code § 12-22-130 ("A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court."), and thereafter, may chose to file a Rule 32 petition collaterally attacking his convictions and sentences. Only by presenting his fifty claims to the state courts of Alabama, either in his direct appeal or in a Rule 32 petition, can petitioner have any hope or expectation that this Court may be in a position to address the merits of some of those claims. As it stands now, a failure by petitioner to exhaust his state remedies would lead inexorably to the conclusion that this Court is procedurally barred from reaching the merits of all claims asserted in the petition.
6. In light of the foregoing, this action should be dismissed without prejudice to being re-filed should the state courts refuse to grant relief
CONCLUSION
The undersigned recommends that Scudder's petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be dismissed, without prejudice, so that petitioner can exhaust his claims in the state courts of Alabama.