United States District Court, S.D. Alabama, Southern Division
DERRICK McMILLIAN, Mobile County Metro Jail Inmate # 0291862, Petitioner,
v.
NOAH PRICE OLIVER, Warden, Mobile County Metro Jail, Respondent.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON, UNITED STATES MAGISTRATE JUDGE
Petitioner
Derrick McMillian, an Alabama prisoner proceeding without
counsel (pro se), initiated his action by filing a
petition for a writ of habeas corpus under 28 U.S.C. §
2254 (Doc. 1) dated September 11, 2019, challenging a
criminal judgment entered against him in June 2019 on a
charge of reckless endangerment by the Municipal Court of the
City of Mobile, Alabama (Docket No. C017000705, Case Citation
No. CL024871-01).[1] The assigned District Judge has referred
the petition to the undersigned Magistrate Judge for
appropriate action. See S.D. Ala. GenLR 72(b);
(10/2/2019 electronic reference). Under S.D. Ala. GenLR
72(a)(2)(R), the undersigned is authorized to require
responses, issue orders to show cause and any other orders
necessary to develop a complete record, and to prepare a
report and recommendation to the District Judge as to
appropriate disposition of the petition, in accordance with
28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules
Governing Section 2254 Cases in the United States District
Courts.
After
conducting preliminary review of the petition in accordance
with Rule 4 of the Rules Governing Section 2254 Cases, the
undersigned ordered that the petition be served on the
Respondent for an answer under Rule 5 of the Rules Governing
Section 2254 Cases, or some other appropriate response. As
ordered (see Doc. 3), the Respondent, through the
Office of the Attorney General of the State of Alabama,
timely filed and served an Answer (Doc. 8) asserting that the
petition is due to be dismissed as procedurally defaulted.
Having reviewed the petition and the Respondent's Answer,
including attached records from the state court proceedings,
the undersigned agrees with the Respondent that the petition
is due to be dismissed because McMillian has not exhausted
his state court remedies prior to filing the present habeas
petition. However, the undersigned disagrees that the
petition is procedurally barred, since McMillian may still be
able to exhaust his claims in state court. Accordingly, the
undersigned will recommend that McMillian's habeas
petition be DISMISSED without prejudice for
failure to exhaust his state court remedies.
I.
Analysis
A.
Failure to Exhaust
“Before
a federal court may grant habeas relief to a state prisoner,
the prisoner must exhaust his remedies in state court. In
other words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition. The
exhaustion doctrine, first announced in Ex parte
Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886),
is now codified at 28 U.S.C. § 2254(b)(1)…”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999).[2] “Section 2254(c) provides that a
habeas petitioner ‘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.'
… 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
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.” Id. at 844-45. Moreover,
“federal courts may treat unexhausted claims as
procedurally defaulted, even absent a state court
determination to that effect, if it is clear from
state law that any future attempts at exhaustion would be
futile.” Bailey v. Nagle, 172
F.3d 1299, 1305 (11th Cir. 1999) (per curiam) (emphasis
added).
The
Respondent asserts, based on his search of applicable state
court records, that McMillian took no direct appeal of his
municipal court conviction.[3] McMillian's petition appears
to substantiate this assertion, as he represents that he
attempted to appeal in the municipal court but received
“no answer.” (Doc. 1, PageID.3. See also
id., PageID.7 (claiming “denial of right to
appeal” because he “filed two appeals and wrote a
letter requesting no response of either”)). There is
also no indication in the record that McMillian has attempted
to challenge his municipal court conviction through the
collateral review remedies available under Alabama Rule of
Criminal Procedure 32, which permits an Alabama prisoner to
petition “the court in which the petitioner was
convicted[, ”] Ala. R. Crim. P. 32.5, for appropriate
relief from his conviction on a number of grounds, including
that “[t]he constitution of the United
States…requires a new trial, a new sentence
proceeding, or other relief.” Ala. R. Crim. P.
32.1(a).[4] Alabama Rule 32 is applicable to municipal
courts. See Ala. R. Crim. P. App. to 32 (on form
Rule 32 petition, in space for “Respondent, ”
instructing: “Indicate either the ‘State' or,
if filed in municipal court, the name of the
‘Municipality' ”); Garner v. City of
Brewton, 668 So.2d 52, 53 (Ala.Crim.App.1994) (reviewing
a Rule 32 petition filed in municipal court). Alabama Rule 32
is the sole mechanism under which a prisoner can collaterally
attack his criminal judgment in state court. See
Ala. R. Crim. P. 32.4 (“A proceeding under this rule
displaces all post-trial remedies except post-trial motions
under Rule 24 and appeal.”).[5] Because McMillian has not
“invok[ed] one complete round of the State's
established appellate review process, ”
O'Sullivan, 526 U.S. at 845, either by direct
appeal or under Alabama Rule 32, he has failed to exhaust the
claims in his habeas petition.
The
Alabama Rules of Criminal Procedure provide a defendant
convicted in a municipal court “the right to appeal the
judgment, within fourteen (14) days of the date of the
judgment or the denial of a timely filed post-judgment
motion, to the circuit court for a trial de novo.” Ala.
R. Crim. P. 30.1(a). Such an appeal is taken “by filing
with the clerk of the municipal … court a written
notice of appeal within fourteen (14) days from the date of
pronouncement of sentence or the date of denial of a timely
filed post-trial motion, whichever is later.” Ala. R.
Crim. P. 30.3(a). Therefore, the time for McMillian to
directly appeal his municipal court conviction has
expired.[6] However, the deadline for McMillian to
petition the Mobile municipal court for relief under Alabama
Rule 32 has not yet passed. Where, as here, an Alabama
prisoner has not appealed his conviction to the Court of
Criminal Appeals, he must file an Alabama Rule 32 petition
challenging that conviction “within one (1) year after
the time for filing an appeal lapses…” Ala. R.
Crim. P. 32.2(c). Here, the Mobile municipal court entered
the relevant criminal judgment sometime in June 2019.
Accordingly, the deadline for McMillian to petition for
relief under Alabama Rule 32 will not lapse until sometime in
June or July 2020. Thus, as of the date of entry of this
recommendation, McMillian will still have ample time file an
Alabama Rule 32 petition with the Mobile municipal court, by
which he might then exhaust the present habeas claims.
Accordingly, because it is not “clear from state law
that any future attempts at exhaustion would be futile[,
]” Bailey, 172 F.3d at 1305, McMillian's
unexhausted claims are not procedurally defaulted at this
time, and the present petition is due to be dismissed without
prejudice so that McMillian can exhaust his claims through
one complete round of state court review.[7]
B.
Certificate of Appealability
In
actions such as this one brought under § 2254, a
“district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rule 11(a) of the Rules Governing Section
2254 Cases in the United States District Courts.
“Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
appeals from the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court.” 28 U.S.C.A. §
2253(c)(1)(A).
Where
habeas relief is denied on procedural grounds without
reaching the merits of the underlying constitutional
claim(s), “a COA should issue [only] when the prisoner
shows . . . that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). “A prisoner seeking a COA must
prove something more than the absence of frivolity or the
existence of mere good faith on his or her part.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
(quotations omitted). However, “a COA does not require
a showing that the appeal will succeed.” Id.
at 337.
Upon
consideration, the undersigned finds that McMillian should be
DENIED a Certificate of Appealability in
conjunction with the dismissal of the present habeas
petition, as reasonable jurists would at least not find it
debatable whether the Court was correct in its procedural
ruling dismissing McMillian's petition for failure to
exhaust.[8]
C.
Appeal In Forma Pauperis
“An
appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good
faith.” 28 U.S.C. § 1915(a)(3). A district
court's finding “that an appeal would not be in
good faith because no certificate of appealability had been
issued . . . is not enough to explain why the appeal on the
merits would not be in good faith, because the standard
governing the issuance of a certificate of appealability is
not the same as the standard for determining whether an
appeal is in good faith. It is more demanding . . . [T]o
determine that an appeal is in good faith, a court ...