United States District Court, N.D. Alabama, Southern Division
K. KALLON, UNITED STATES DISTRICT JUDGE
an action for a writ of habeas corpus filed by Petitioner
Douglas Fancher, pro se, on or about November 5,
2016. Doc. 1. Fancher, a pre-trial detainee, claims he is
being held unlawfully in the Jefferson County Jail in
Bessemer, Alabama. On December 8, 2016, the magistrate judge
to whom the action was referred entered a report and
recommendation pursuant to 28 U.S.C. § 636(b)
recommending that the court dismiss Fancher's habeas
petition without prejudice based on his failure to exhaust
available state remedies. Doc. 4. The time to object to the
magistrate judge's report and recommendation has expired.
carefully reviewed and considered de novo all the
materials in the court file, including the magistrate
judge's report and recommendation, the court is of the
opinion that the magistrate judge's findings are due to
be and are hereby ADOPTED and his recommendation is ACCEPTED.
Accordingly, the petition for a writ of habeas corpus is due
to DISMISSED WITHOUT PREJUDICE.
a petitioner is required to obtain a certificate of
appealability in order to appeal from “the final in a
habeas corpus proceeding in which the detention complained of
arises out process issued by a state court.” 28 U.S.C.
§ 2253(c)(1)(A). That language encompasses final orders
relative to habeas petitions by detainees awaiting trial in
state court on criminal charges. See Evans v.
Oliver, 2013 WL 4027766, at *4 (S.D. Ala. Aug. 7, 2013);
Stringer v. Williams,161 F.3d 259, 262 (5th Cir.
1998); cf. Medberry v. Crosby,351 F.3d 1049, 1063
(11th Cir. 2003); Hiteshaw v. Butterfield, 262 F.
App'x 162, 163 (11th Cir. 2008). It is appropriate for
the court to either issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant. See Rules 1(b), 11(a), Rules Governing
§ 2254 Habeas Proceedings. The court concludes that the