Opinion
Civil Action 00-0492-RV-L
December 27, 2000
REPORT AND RECOMMENDATION
Mark Weaver, Petitioner, a state prisoner currently in the custody of Respondent, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on May 25, 2000. (Doc. 1.) In an order dated June 22, 2000, this Court ordered Petitioner to file his habeas petition on this Court's form for a habeas petition. Petitioner complied, filing an amended petition on July 12, 2000 (Doc. 7.) After service of the amended complaint, Respondent filed an answer on December 14, 2000 (Doc. 13).
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, the undersigned recommends that Petitioner's petition be dismissed without prejudice for failure to exhaust his remedies in state court.
FINDINGS OF FACT
1. Petitioner is attacking his June 24, 1997, conviction in the Circuit Court of Mobile County for burglary in the first degree. Petitioner was sentenced under the Alabama Habitual Felony Offender Act to life in prison without parole. (Doc. 7.)
2. On direct appeal, Petitioner's attorneys raised only one issue: Whether the "trial court impermissibly comment[ed] on the evidence during its oral charge to the jury." (Doc. 13, Exhibit 2 3.) The Alabama Court of Criminal Appeals affirmed Petitioner's conviction in a memorandum opinion issued January 30, 1998 (Doc. 13, Exhibit 4.). See Weaver v. State, 728 So.2d 713 (Table) (Ala.Cr.App. 1998).
3. The Alabama Supreme Court denied certiorari on June 26, 1998. (Doc.13 at 2; Doc. 13, Exhibit 5, at 202.) Ex parte Weaver, 733 So.2d 496 (Table) (Ala. 1998).
4. Petitioner collaterally attacked his conviction in a Rule 32 petition filed in the Circuit Court of Mobile County on June 9, 1999. (Doc. 13, Exhibit 5.) A hearing was held on March 3, 2000, with Ronald Sullivan, Esquire, appearing for the Petitioner.
5. On March 16, 2000, the Circuit Court entered an order denying Petitioner's Rule 32 petition. Id., at 171-173.
6. Petitioner appealed the denial of his Rule 32 petition to the Alabama Court of Criminal Appeals. Although the appeal was initially denied as untimely filed, Petitioner's motion to reinstate the appeal was granted on June 12, 2000. Id., at 178.
7. On December 1, 2000, the Court of Criminal Appeals granted Petitioner's motion for additional time to file appellant's brief Petitioner's appeal is pending, with briefs due January 12, 2001. (Doc. 13, Exhibit 6.)
CONCLUSIONS OF LAW
Writs of habeas corpus for state prisoners in federal court are governed in part by 28 U.S.C. § 2254 (b), which states in relevant part,
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State;28 U.S.C. § 2254 (West, 2000). 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." Concerning exhaustion, the Supreme Court has recently stated,
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. The exhaustion requirement, first announced in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), is now codified at 28 U.S.C. § 2254 (b)(1) . . . .
State courts, like federal courts, are obliged to enforce federal law. Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. Rose v. Lundy, 455 U.S. 509, 515-516, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed.761 (1950).O'Sullivan v. Boerckel, 526 U.S. 838, 843-844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).
The record indicates that Petitioner has exhausted only one claim — whether the trial court impermissibly commented on the evidence during its oral charge to the jury — in that this claim was presented on direct review to the Alabama Supreme Court. (Doc. 13, Exhibit 2, 5.) The record also establishes that petitioner is currently pursuing a Rule 32 petition before the Alabama Court of Criminal Appeals. (Doc. 13, Exhibits 5 and 6.) In other words, the claims in the Rule 32 petition are not exhausted. Therefore this case is not ripe for federal habeas review. Comity dictates that this Court delay adjudication of Petitioner's federal petition until he has exhausted his state remedies.
If a petitioner has exhausted some claims but not others, his petition is "mixed" and must be dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982).
CONCLUSION
The undersigned recommends that this action be dismissed without prejudice so that Petitioner may exhaust his pending state remedies before pursuing federal habeas relief in this Court. The attached sheet contains important information regarding this report and recommendation.