Opinion
Civil Action No. 00-0493-BH-L.
December 21, 2000
REPORT AND RECOMMENDATION
Zonnie Weaver, a state prisoner currently 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.) 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. Weaver 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. 14).
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 Weaver'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. (Doc. 7.)
2. On direct appeal, Weaver's attorneys raised only one issue. The issue was whether the "trial court impermissibly comment[ed] on the evidence during its oral charge to the jury". (Doc. 14, Exhibit 2.) The Alabama Court of Criminal Appeals affirmed Weaver's conviction in a memorandum opinion issued January 30, 1998. (Doc. 14, Exhibit 4.) The Court of Criminal Appeals denied Weaver's petition for rehearing on March 6, 1998. See Weaver v. State, 728 So.2d 713 (Table) (Ala.Cr.App. 1998).
3. The Alabama Supreme Court denied certiorari and issued a certificate of judgment on June 26, 1998. (Doc. 14 at 2; Doc. 14, Exhibit 5, at 202.)
4. Petitioner collaterally attacked his conviction in a Rule 32 petition filed in the Circuit Court of Mobile County on June 14, 1999. (Doc. 14, 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 Weaver's Rule 32 petition. Id., at 335-337.
6. Weaver filed an appeal of the denial of his Rule 32 petition with the Alabama Court of Criminal Appeals. Although the appeal was initially denied as untimely filed, the Court of Criminal Appeals granted Weaver's motion to reinstate the appeal on June 12, 2000. Id., at 339.
7. On December 1, 2000, the Court of Criminal Appeals granted Weaver's motion for additional time to file appellant's brief. Petitioner's appeal is still pending, with briefs not due until January 12, 2001. (Doc. 14, 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? (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 the 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. 14, Exhibit 2, 5.) The record also establishes that petitioner is currently pursuing a Rule 32 petition before the Alabama Court of Criminal Appeals. (Doc. 14, 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 Weaver's federal petition until Weaver 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.