United States District Court, N.D. Alabama, Southern Division
Xavier Jett, Petitioner, Pro se, Elmore, AL.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
JOHN H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
Petitioner Xavier Jett (" Jett" or " Petitioner"), a person in custody under a judgment of a court of Alabama, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The petition was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b) for preliminary review. Upon initial review, on October 2, 2014, the undersigned issued the following show cause order, in pertinent part:
Upon review of the petition, it does not appear to state a cognizable claim for habeas relief. ( See doc. 1). Petitioner indicates he is challenging his 2004 conviction for attempted murder, but Petitioner states no grounds for relief in the spaces provided. ( See id. at 1, 5-10). Instead, at the end of the petition form, in a section entitled " Timeliness of Petition, " Petitioner contends he filed a post-conviction petition in the Circuit Court of Jefferson County, Alabama, but the trial court will not rule on the petition. (Doc. 1 at 11). He further contends he has filed a writ of mandamus in the Alabama Court of Criminal Appeals and the Alabama Supreme Court and has no other remedy but to seek relief in federal court when he is serving an illegal sentence. (Id.).
Federal habeas relief is available only if the petitioner alleges and proves his conviction contravenes federal law. See Carrizales v. Wainwright, 699 F.2d 1053 (11th Cir. 1983). No such relief is available for an alleged defect in a collateral proceeding, such proceedings on a Rule 32 petition. Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004), cert. denied, 543 U.S. 960, 125 S.Ct. 436, 160 L.Ed.2d 325 (2004).
Accordingly, Petitioner is ORDERED to SHOW CAUSE in writing by October 22, 2014, why this petition should not be dismissed for failure to state claim.
Jett timely responded to the show cause order and moved for an order placing his habeas petition in abeyance to allow him to fully exhaust his state court remedies. (Doc. 5). Although Jett makes this request, he fails to show cause why his petition should not be dismissed for failure to state a claim or how attempting to exhaust his remedies would cure this defect. ( See id.). For the reasons stated in the show cause order, (doc. 4), the motion to hold in abeyance, (doc. 5), is due to be denied and this petition is due to be dismissed.
Based on the foregoing, the undersigned RECOMMENDS Petitioner's motion to hold in abeyance be DENIED and the petition for a writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for failure to state a claim.
V. Notice of Right to Object
Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.
Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of ...