Opinion
Civil Action No. 00-0754-BH-M
November 9, 2001
REPORT AND RECOMMENDATION
This is an action under 28 U.S.C. § 2254 by an Alabama inmate which was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that the habeas petition be dismissed, without prejudice, as it has been prematurely filed.
Petitioner was convicted of robbery third degree in the Circuit Court of Mobile County on March 30, 1999 for which he received a sentence of twenty years in the state penitentiary pursuant to the Alabama Habitual Felony Offender Act. Appeal was made to the Court of Criminal Appeals of Alabama which affirmed the conviction and sentence (Doc. 10, Exhibit 4). Petitioner filed a complaint with this Court on August 18, 2000, raising the following claims: (1) Petitioner's trial attorney rendered ineffective assistance in that he: (a) failed to object to the fact that Tunstall was never arraigned; (b) did not object to the Prosecutor's amendment of the indictment prior to trial; (c) did not object to the admission of an identification photo spread; and (d) did not request jury charges on theft of property and attempted theft of property; and (2) Petitioner's appellate counsel rendered ineffective assistance for failing to raise the claim that Tunstall was never arraigned (Docs. 1-2)
Respondent has answered the petition, stating that Tunstall's claim regarding the ineffectiveness of his trial attorney is procedurally defaulted (Doc. 10, pp. 5-6). Respondent further asserts that Petitioner's claim that his appellate counsel rendered ineffective assistance has never been raised in the state courts and that the claim is, therefore, unexhausted; there is a further assertion that a remedy for this claim still exists in the state courts (Doc. 10, p. 7).
Because of the Court's recommendation that this action be dismissed, the Court will not address Respondent's assertion that Petitioner's ineffective assistance of trial counsel is procedurally defaulted.
The evidence of record provides no indication that Petitioner has ever raised his second claim by any appropriate state procedure before filing this petition. It would appear, then, that Petitioner has failed to exhaust his state remedies with regard to his claim regarding the ineffective assistance of his appellate counsel. As Petitioner has stated a claim in this court, i.e., claim one, but has raised a claim not yet exhausted in the state courts, i.e., claim two, Petitioner has a mixed petition. See Rose v. Lundy, 455 U.S. 509 (1982)
In making this statement, the Court relies on Respondent's assertion (Doc. 10, 15). The Court notes, however, that its own review of the evidence would suggest otherwise.
Specifically, it appears that Tunstall raised the ineffective assistance of appellate counsel claim in his Rule 32 petition (Doc. 10, Exhibit 6, supp. p. 5). However, it is clear that the State did not address the claim in its reply brief (Doc. 10, Exhibit 7) and that the trial judge ruling on the petition did not address it either (Doc. 10, Exhibit 8). So, understanding Respondent's assertion that the claim was never raised to mean that Petitioner was never given the opportunity to have the claim addressed, this Court finds that it was never raised.
As Petitioner has filed a mixed petition, i.e., a petition which has both exhausted and non-exhausted claims, Petitioner has the option of amending his complaint and pursuing the exhausted claim, or requesting that the petition be dismissed without prejudice so that he may pursue his state remedies before refiling a habeas petition in this Court. Rose v. Lundy, 455 U.S. 509 (1982). Therefore, the Magistrate Judge would recommend that Petitioner be given a period of twenty days to file a pleading in this Court making known his wishes with regard to this petition. Specifically, unless Petitioner, within twenty days, files an amended habeas complaint which severs his claim of ineffective assistance of appellate counsel from the present petition, the Magistrate Judge would recommend that this action be dismissed, without prejudice, in its entirety so that Petitioner may be afforded the opportunity to exhaust his state remedies.
Petitioner should bear in mind that Rule 9(b) of the Rules Governing Habeas Corpus Cases under Section 2254 provides for the dismissal of successive habeas petitions if Petitioner raises new claims and does not meet the burden of proving that his "failure to raise the issue in his first petition was not the result of intentional withholding or inexcusable neglect." Ritter v. Thigpen, 828 F.2d 662, 664 (11th Cir. 1987).