United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE
case is before the undersigned on Billy Ray Russ'
petition for writ of habeas corpus under 28 U.S.C. §
2254 in which Russ claims he is being wrongfully held in
prison beyond the expiration of his sentence as a result of
the miscalculation of his end-of-sentence date for his 2003
Houston County bail-jumping conviction (No. CC2003-262).
(Doc. 1). Respondents maintain that Russ has not exhausted
his available state court remedies and that his § 2254
petition should therefore be dismissed without prejudice to
allow him to exhaust in the state courts. See (Docs.
22, 24, 34, 41). The Court entered an Order allowing Russ to
demonstrate why his petition should not be dismissed without
prejudice for his failure to exhaust state court remedies,
and Russ filed a response. (Docs. 42, 43).
petition for writ of habeas corpus filed by “a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the
[convicting] State.” 28 U.S.C. § 2254(1)(b)(1)(A).
Because Russ is “in custody pursuant to the judgment of
a State court, ” he is subject to § 2254's
exhaustion requirement. See Dill v. Holt, 371 F.3d
1301, 1302-03 (11th Cir. 2004). “An applicant shall not
be deemed to have exhausted the remedies available in the
courts of the State . . . if he has the right under the law
of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c).
“[S]tate prisoners 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, ” including review by the state's
court of last resort, even if review in that court is
discretionary. O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); see Pruitt v. Jones, 348 F.3d 1355,
1359 (11th Cir. 2003).
Alabama law, a state petition for writ of habeas corpus filed
in the state circuit court in the jurisdiction where the
inmate is incarcerated is the proper method to initiate a
challenge to the State's calculation of the time an
inmate must serve in prison. See Gunn v. State, 12
So.3d 711, 712 (Ala.Crim.App.2007); Day v. State,
879 So.2d 1206, 1207 (Ala.Crim.App.2003). Further, to invoke
“one complete round” of Alabama's established
appellate review process, a petitioner receiving an
unfavorable decision by the state circuit court must then
properly seek review in the Alabama Court of Criminal Appeals
and, if an unfavorable decision is obtained in the Alabama
Court of Criminal Appeals, properly seek certiorari review by
the Alabama Supreme Court. Williams v. Billups, 2016
WL 3007140 at *2 (M.D. Ala. 2016); see Dill 371 F.3d
at 1303; Pruitt, 348 F.3d at 1359.
Answer, as supplemented, and the evidentiary materials
submitted therewith, indicate that Russ has not exhausted his
claim in the Alabama courts. See (Doc. 41).
Specifically, Russ has not properly filed a state petition
for writ of habeas corpus alleging that he is being held in
prison beyond the expiration of his sentence in No.
CC2003-262 as a result of Alabama officials having
miscalculated his end-of-sentence date. Russ avers that he
filed a state petition for writ of habeas corpus raising his
sentence-miscalculation claim in the Houston County Circuit
Court in August 2018 but that the petition was not accepted
for filing because he did not pay the filing fee or submit an
affidavit of substantial hardship in support of an
application to proceed in forma pauperis. (Doc. 43)
acknowledges that he did not submit the affidavit of
substantial hardship within the 14 days allowed by the
circuit court, but says he failed to do so because he was
placed in a drug rehabilitation program while the 14-day
period expired. (Doc. 43) at 5. Russ has not shown that the
circuit court's refusal to accept his August 2018
petition based on his failure to submit an affidavit of
substantial hardship will bar or otherwise prevent him from
filing a proper state petition for writ of habeas corpus,
with the filing fee or an affidavit of substantial hardship
in support of an application to proceed in forma
pauperis, whereupon he may receive a merits
determination of his sentence-miscalculation claim. Should
Russ properly file a state petition for writ of habeas corpus
seeking redress for his sentence-miscalculation
claim and then receive an adverse decision, he
would need to follow the appropriate Alabama appellate
procedures in appealing the adverse decision to properly
exhaust his claim. See Williams, 2016 WL 3007140 at
*2; Dill 371 F.3d at 1303.
undersigned does not consider it appropriate to rule on the
merits of Russ's sentence-miscalculation claim without
first requiring that he exhaust his available state court
remedies. Therefore, the undersigned concludes that Russ'
§ 2254 petition should be dismissed without prejudice,
so Russ may exhaust those remedies.
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 afford Russ an
opportunity to exhaust his available state court remedies on
his sentence-miscalculation claim. It is further
that on or before June 19, 2019, 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 grounds of plain error or manifest injustice. 11th Cir.
R. 3-1; see Resolution Trust Co. v. Hallmark Builders,
Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley
v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).