United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.
Dlester Crandle, a state pretrial detainee housed in the
Mobile County Metro Jail, has filed a petition seeking habeas
corpus relief pursuant to 28 U.S.C. § 2241 (Doc. 1).
This matter has been referred to the undersigned for the
entry of a report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B) and General Local Rule 72(a)(2)(R). It is
recommended that Crandle's petition be DISMISSED without
prejudice, prior to service, to afford him an opportunity to
exhaust all available state remedies.
together the allegations contained in the petition
(see Doc. 1, at 6-8), with those contained in the
motion to dismiss (Doc. 3), it appears to the undersigned
that Crandle was arrested on July 29, 2016 and incarcerated
in the Mobile County Metro Jail on charges related to the
robbery and shooting of 90-year-old Booker Green
(compare Doc. 1 with Doc. 3). Bond was set
at $250, 000 by Mobile County District Judge Bob Sherling,
which petitioner complains that he cannot afford to pay (Doc.
1, at 2 & 7) and, therefore, contends, violates his
Eighth Amendment rights (id. at 6). In the petition,
Crandle seeks to challenge: (1) the seizure of his cell phone
without a warrant; (2) his arrest on "hearsay;" (3)
the unconscionable $250, 000 bond, as well as the district
court's reliance on inaccurate evidence (that is, that he
was purportedly out on bond at the time of his arrest on July
29, 2016) in setting the bond (see Id . 6-7); and
(4) the purported lack of evidentiary support for the charges
lodged against him (see Doc. 3). Concurrent with
filing his habeas complaint, Crandle filed a motion to
proceed without prepayment of fees and costs (Doc. 2) and a
motion to dismiss (see Doc. 3).
district court has the power under Rule 4 of the Rules
Governing Section 2254 Cases "to examine and dismiss
frivolous habeas petitions prior to any answer or other
pleading by the state." Riser v. Johnson, 163
F.3d 326, 328 (5th Cir. 1999); see Jackson v. Secretary
for the Department of Corrections, 292 F.3d 1347, 1349
(11th Cir. 2002) ("[W]e hold that the district court
possessed the discretion to raise sua sponte the
timeliness issue."); Hill v. Braxton, 277 F.3d
701, 705 (4th Cir. 2002) ("Even though the limitations
period is an affirmative defense, a federal habeas court has
the power to raise affirmative defenses sua sponte,
as the district court did in this case."). Rule 4
provides, in pertinent part, that "[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,
the judge must dismiss the petition and direct the clerk to
notify the petitioner." 28 U.S.C. foil. § 2254,
two requirements are satisfied, a state pretrial detainee
like Crandle can raise constitutional claims in a habeas
corpus petition filed pursuant to 28 U.S.C. § 2241.
See, e.g., Robinson v. Hughes, 2012 WL 255759, *2
(M.D. Ala. Jan. 5, 2012), report and recommendation
adopted, 2012 WL 253975 (M.D. Ala. Jan. 27, 2012).
First, the petitioner must be "in custody, " albeit
"not pursuant to the final judgment of a state court[,
]" id., citing Dickerson v. Louisiana,
816 F.2d 220, 224 (5th Cir. 1987); 28 U.S.C. § 2241(c),
and, second, he "must have exhausted his available state
remedies." Id.; see Braden v. 30th Judicial Circuit
Court of Kentucky, 410 U.S. 484, 488-489 & n.4, 93
S.Ct. 1123, 1126-1127 & n.4, 35 L.Ed.2d 443 (1973)
(finding petitioner had satisfied § 2241(c)(3)'s
"in custody" requirement and that he had exhausted
"all available state remedies as a prelude to this
Crandle is incarcerated in the Mobile County Metro Jail
awaiting trial on unknown charges arising in Mobile County,
Alabama. Therefore, he satisfies the "in custody"
requirement for purposes of § 2241.
to the second requirement, the United States Supreme Court in
Braden, supra, certainly gave every indication that
a petitioner must exhaust all available state remedies under
an action brought pursuant to § 2241. See 410
U.S. at 485-489, 93 S.Ct. at 1125-1127. "Although the
statutory language of 28 U.S.C. § 2241 itself does not
contain an exhaustion requirement, this circuit has
determined that the requirements of 28 U.S.C. § 2254,
including exhaustion of state remedies, apply to a subset of
petitioners to whom § 2241(c)(3) applies, i.e., those
who are 'in custody in violation of the Constitution or
laws or treaties of the United States.'"
Robinson, supra, at *2 n.3 (citations omitted);
see also Skaggs v. Morgan, 2012 WL 684801, *3 (N.D.
Fla. Jan. 31, 2012) ("Despite the absence of an
exhaustion requirement in the statutory language of §
2241(c)(3), a body of case law has developed holding that
although § 2241 establishes jurisdiction in the federal
courts to consider pretrial habeas corpus petitions, federal
courts should abstain from the exercise of that jurisdiction
if the issues raised in the petition may be resolved either
by trial on the merits in the state court or by other state
procedures available to the petitioner."), report
and recommendation adopted, 2012 WL 684766 (N.D. Fla.
Mar. 2, 2012).
for federal habeas corpus relief is not exhausted so long as
a petitioner "has the right under the law of the State
to raise, by any available procedure, the question
presented." 28 U.S.C. § 2254(c). "Section
2254(c) requires only that state [petitioners] give state
courts a fair opportunity to act on their
claims." See O 'Sullivan v. Boerckel, 526
U.S. 838, 844, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999)
(emphasis in original; citations omitted). "Because the
exhaustion doctrine is designed to give the state courts a
full and fair opportunity to resolve federal constitutional
claims before those claims are presented to the federal
courts, we conclude that state [petitioners] must give the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process."
Id. at 845, 119 S.Ct. at 1732; see Heck v.
Humphrey, 512 U.S. 477, 480-481, 114 S.Ct. 2364, 2369,
129 L.Ed.2d 383 (1994) ("The federal habeas corpus
statute . . . requires that state [petitioners] first seek
redress in a state forum."); Preiser v.
Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 1827, 1830, 36
L.Ed.2d 439 (1973) ("If . . . habeas corpus is the
exclusive federal remedy . . ., then a [petitioner] cannot
seek the intervention of a federal court until he has first
sought and been denied relief in the state courts, if a state
remedy is available and adequate.").
habeas claim is deemed to be exhausted when "it is fair
to assume that further state proceedings would be
useless." Castille v. Peoples, 489 U.S. 346,
351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989). This
standard is met when the precise issue raised in a habeas
petition has been "fairly presented" to the
state's highest court. See Id . (citation
omitted). The exhaustion requirement is not met "where
the claim has been presented for the first and only time in a
procedural context in which the merits will not be considered
unless 'there are special and important reasons
therefor[.]'"W. (citation omitted). If the claims
raised in a federal habeas corpus petition have not been
exhausted, the petition should be dismissed. See Anderson
v. Harless, 459 U.S. 4, 6 & 7-8, 103 S.Ct. 276, 277
& 278, 74 L.Ed.2d 3 (1982). Each and every claim raised
in the petition must be exhausted to the state's highest
court and it is the petitioner's burden to show that all
claims have been fairly presented to that court. See Rose
v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71
L.Ed.2d 379 (1982) ("[O]ur interpretation of §
2254(b), (c) provides a simple and clear instruction to
potential litigants: before you bring any claims to federal
court, be sure that you first have taken each one to state
court."); Morales v. Shannon, 2007 WL 1877977,
*3 (E.D. Pa. June 27, 2007) ("A petitioner must exhaust
state remedies as to each of his federal claims.");
United States ex rel. Quezada v. Uchtman, 2006 WL
3341200, *2 (N.D. 111. Nov. 16, 2006) ("[T]he petitioner
must properly assert each claim at each and every level in
the state court system, either on direct appeal of his
conviction or in post-conviction proceedings.").
exhaustion requirement is excused if "there is either an
absence of available State corrective process  or . . .
circumstances exist that render such process ineffective to
protect the rights of the applicant." 28 U.S.C. §
2254(b)(1)(B)(i) & (ii). A failure to exhaust has been
excused where, because of prior rulings, resort to the state
courts would be futile. See Allen v. State of
Alabama, 728 F.2d 1384, 1387 (11th Cir. 1984).
Exhaustion has also been excused where the state has
unreasonably delayed in acting on the petitioner's
efforts to invoke state remedies or fails to address the
petition without explanation. See, e.g., Hollis v.
Davis, 941 F.2d 1471, 1475 (11th Cir. 1991) ("A
federal habeas petitioner need not wait until his
state petitions for relief are exhausted, if the state court
has unreasonably or without explanation failed to address
petitions for relief."), cert, denied, 503 U.S.
938, 112 S.Ct. 1478, 117 L.Ed.2d 621 (1992); Cook v.
Florida Parole & Probation Comrn'n, 749 F.2d
678, 679 (11th Cir. 1985) ("State remedies will be found
ineffective and a federal habeas petitioner will be excused
from exhausting them in the case of unreasonable, unexplained
state delays in acting on the petitioner's motion for
state relief."). Finally, other special or exceptional
circumstances may also excuse exhaustion. See, e.g.,
Clarke v. Grimes, 374 F.2d 550, 551 (5th Cir. 1967)
("It is true that under Fay v. Noia, the
federal trial court has broad discretion to hear a habeas
corpus petition though state remedies have not been
exhausted, if there are circumstances which demand relief to
protect the rights of the prisoner.").
case, Crandle certainly has not exhausted his claims
(see Doc. 1, at 6-8) in the Alabama Supreme Court
nor has he established any basis for this Court to excuse the
exhaustion requirement. Because petitioner has failed to
exhaust his ...