United States District Court, M.D. Alabama, Northern Division
SAMUEL L. MARSHALL, # 165871, Petitioner,
PATRICE RICHIE, et al., Respondents.
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
matter is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed on
July 24, 2018, by Samuel L. Marshall
(“Marshall”), a state inmate at Bullock
Correctional Facility in Union Springs, Alabama. Doc. No. 1.
Marshall is serving a life sentence for a 1996 conviction for
cocaine distribution. However, he does not challenge that
conviction by his instant petition. Instead, he seeks a writ
of federal habeas corpus to compel the State of Alabama to
grant him a speedy trial on drug possession charges pending
against him in the District Court of Jefferson County,
Alabama (DC-14-2766). Doc. No. 1 at 4 & 8-9.
Respondents have filed an answer in which they argue
Marshall's habeas petition should be dismissed without
prejudice because Marshall has failed to exhaust his state
court remedies on his speedy trial claim. Doc. No. 13 at 2-4.
Marshall is an incarcerated state inmate, he is not attacking
the conviction and sentence-i.e., the state court
judgment-forming the basis of that incarceration. Instead, in
asserting his speedy trial claim, he is challenging the
constitutionality of his custody stemming from the drug
possession charges pending against him in Jefferson County
District Court Case. No. DC-14-2766. For purposes of the
habeas statutes, he is a pretrial detainee under those
charges. Consequently, although he brings this habeas
petition under § 2254, his habeas petition is properly
asserted under § 2241. See Hughes v. Attorney Gen.
of Fla., 377 F.3d 1258, 1261-62 (11th Cir. 2004);
Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir.
either case, whether under § 2254 or § 2241, a
petition for writ of habeas corpus will not be considered by
the federal court unless the petitioner has exhausted his
available state remedies. Dill v. Holt, 371 F.3d 1301
(11th Cir. 2004); see 28 U.S.C. §
2254(b)(1)(A). State remedies are ordinarily not deemed
exhausted so long as a petitioner may effectively present his
claims to the state courts by any currently available and
adequate procedure. Braden v. 30th Judicial Circuit Ct.
of Ky., 410 U.S. 484, 489 (1973). Typically, to exhaust,
a petitioner must fairly apprise the highest state court of
the federal rights that were allegedly violated. See
O'Sullivan v. Boerckel, 526 U.S. 828, 845 (1999);
Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir.
defendant's Sixth Amendment right to a speedy trial may
be asserted in the Alabama trial courts by motion and, if the
motion is denied, by a state petition for writ of habeas
corpus, the denial of which may be appealed. See Williams
v. State, 511 So.2d 265, 267 (Ala.Crim.App.1987)
(“One whose constitutional right to a speedy trial is
violated may be granted relief by habeas corpus where his
motion for discharge is denied and no other remedy is
available. Blake v. State, 448 So.2d 968 (Ala. Cr.
App. 1984).”); Aaron v. State, 497 So.2d 603,
605 (Ala.Crim.App.1986) (“Pending trial, the remedy for
illegal confinement by reason of the erroneous postponements
of trial is habeas corpus where a motion for discharge has
been denied and no other remedy is available.”); Ex
parte Hamilton, 970 So.2d 285 (Ala. 2006) (certiorari
review of Court of Criminal Appeals' denial of a petition
for writ of habeas corpus asserting speedy trial violation);
Grace v. Alabama, 2013 WL 6596951, at *1 (M.D. Ala.
2013) (“Grace contends that his right to a speedy trial
has been violated by Alabama authorities. A criminal
defendant in Alabama may file a motion for a speedy trial or
a state petition for writ of habeas corpus in the state trial
court to address alleged speedy trial violations. See
Williams v. State, 511 So.2d 265, 267
in the record indicates that Marshall has raised his speedy
trial claim at any stage in state court proceedings.
Therefore, the Respondents are correct in saying that
Marshall has failed to exhaust his state court remedies on
his speedy trial claim. This court allowed Marshall to reply
to the Respondents' answer and to show cause why his
habeas petition should not be dismissed because of his
failure to exhaust state court remedies. Doc. No. 14.
Marshall has filed a response in which he argues he is
excused from meeting the exhaustion requirement on grounds of
futility because “Alabama has no ‘Speedy Trial
Act.” Doc. No. 15 at 2. Marshall's argument is
unavailing, because, as is apparent in the procedures
discussed above, Alabama has an available state corrective
process by which Marshall may raise and then exhaust his
speedy trial claim. Only an “absence of available state
corrective process” or “circumstances . . . that
render such process ineffective to protect [his] rights,
” 28 U.S.C. § 2254(b)(1)(B), can excuse a
petitioner's failure to meet the exhaustion requirement.
has not demonstrated that his speedy trial claim is
exhausted, and he asserts no valid grounds for waiving the
exhaustion requirement in his case. This court does not deem
it appropriate to rule on Marshall's claim without first
requiring him to exhaust his available state court remedies.
See 28 U.S.C. § 2254(1)(b)(2). Consequently,
Marshall's petition for writ of habeas corpus should be
dismissed without prejudice so he can pursue those remedies.
therefore the RECOMMENDATION of the Magistrate Judge that
Marshall's petition for writ of habeas corpus (Doc. No.
1) should be DISMISSED WITHOUT PREJUDICE, because Marshall
has failed to exhaust his state court remedies.
that the parties shall file any objections to this
Recommendation on or before December 14, 2018. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under 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