United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker United States Magistrate Judge.
cause is before the court on an amended petition for writ of
habeas corpus under 28 U.S.C. § 2254 (see Doc.
Nos. 6 & 7) in which petitioner Dedric Jamar Dean
(“Dean”) sets forth claims challenging the Dale
County Circuit Court's October 2017 revocation of his
community-corrections sentence. Dean claims that, in revoking
his community-corrections sentence, the State violated his
due process and equal protection rights, his right to
protection against illegal search and seizure, and his right
to be free from cruel and unusual punishment. Doc. No. 6 at
5. In addition, he contends that his lawyer in the revocation
proceedings rendered ineffective assistance of counsel. Doc.
No. 7 at 1-2.
respondents argue that Dean has failed to exhaust his state
court remedies regarding his claims and that his § 2254
petition should be dismissed without prejudice to allow him
to exhaust those remedies. See Doc. No. 12.
Specifically, the respondents note that Dean's appeal
from the revocation of his community-corrections sentence is
pending in the Alabama Court of Criminal Appeals.
Id. at 4-7.
light of the arguments and evidence presented by the
respondents with their answer, the court entered an order
allowing Dean to demonstrate why his petition should not be
dismissed for his failure to exhaust state court remedies.
Doc. No. 13. Dean has failed to file a response to this order
within the time provided by the court.
a § 2254 petitioner may obtain federal habeas corpus
review, he must exhaust his federal claims by raising them in
the appropriate court, allowing the state courts to decide
the merits of the constitutional issue raised. See
28 U.S.C. § 2254(b)(1) & (c); Duncan v.
Walker, 533 U.S. 167, 178-79 (2001). To exhaust a claim
fully, a petitioner must “invok[e] one complete round
of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). In Alabama, a complete round of the
established appellate review process includes an appeal to
the Alabama Court of Criminal Appeals, an application for
rehearing to that court, and a petition for discretionary
review- a petition for a writ of certiorari-filed in the
Alabama Supreme Court. See Smith v. Jones, 256 F.3d
1135, 1140-41 (11th Cir. 2001); Ala.R.App.P. 39 & 40. The
exhaustion requirement applies to state post-conviction
proceedings and to direct appeals. See Pruitt v.
Jones, 348 F.3d 1355, 1359 (11th Cir. 2003).
review of the parties' submissions, it is clear that Dean
has not exhausted his available state court remedies
regarding the claims in his § 2254 petition. As the
respondents observe, Dean's appeal from the revocation of
his community corrections sentence is currently pending in
the Alabama Court of Criminal Appeals. Thus, Dean has not
invoked or obtained a complete round of the State's
established appellate review process regarding his claims.
O'Sullivan, 526 U.S. at 845.
court does not deem it appropriate to rule on the merits of
Dean's claims without first requiring that he exhaust his
state court remedies; the court therefore concludes that the
instant petition should be dismissed without prejudice so
Dean may exhaust those remedies. See 28 U.S.C.
it is the RECOMMENDATION of the Magistrate Judge that the
petition for writ of habeas corpus under 28 U.S.C. §
2254 be DISMISSED without prejudice to allow Dean to exhaust
all available state court remedies.
that on or before February 16, 2018, the parties may file
objections to the Recommendation. A party must specifically
identify the factual findings and legal conclusions in the
Recommendation to which the objection is made. Frivolous,
conclusive, or general objections to the Recommendation will
not be considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
shall bar a party from a de novo determination by
the District Court of legal and factual issues covered in the
Recommendation and waives the right of the party to challenge
on appeal the district court's order based on
unobjected-to factual and legal conclusions accepted or
adopted by the District Court except upon ...