FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 14, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15683

Non-Argument Calendar

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D. C. Docket No. 04-00147-CV-DF-5

RICHARD RICARDO SLATER, 

 

Petitioner-Appellant, 

versus 

BRUCE CHATMAN, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(September 14, 2005)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

Richard Ricardo Slater, a Georgia prisoner proceeding pro se, appeals the

district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for
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failure to exhaust state-court remedies. After review, we affirm.

In this case, there is no dispute that Slater has failed, in fact, to exhaust his

state-court remedies. Normally, this failure would automatically prohibit a federal

court from granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A). However, an

exception to this general rule applies when either “there is an absence of available

State corrective process[] or circumstances exist that render such process

ineffective to protect the rights of the applicant.” Id. at §§ 2254(b)(1)(B)(i) - (ii). 

Because Slater argues that his case fits the above exception, we must outline his

state-court proceedings and examine whether the exception applies.

In 2001, Slater was convicted in state court for: (1) intent to distribute

marijuana; and (2) driving with a suspended/revoked driver’s license. He was

sentenced to eight years’ probation. In 2002, Slater was convicted in state court for

cocaine trafficking within 1,000 feet of school property. On May 22, 2003,

Slater’s probationary sentence was revoked based on his conviction for cocaine

trafficking.

Slater filed both a state direct appeal and a state habeas petition challenging

his probation revocation. As of the date of the district court’s dismissal of Slater’s

§ 2254 petition, Slater’s direct appeal had been pending for 16 months. However,

for reasons unexplained in the record, it allegedly took the state 14 months to
Slater’s state habeas petition has been stayed because, under Georgia state law, a prisoner’s 1

state habeas petition ordinarily must be stayed during the pendency of the direct appeal process. See

generally O.C.G.A. § 9-14-42; Collins v. State, 591 S.E.2d 820, 821 (Ga. 2004). Thus, we focus on

Slater’s direct appeal.

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appoint Slater appellate counsel.

Although we have some question as to why it would take 14 months to

appoint counsel, the state courts are now moving forward with Slater’s direct

appeal. Given that the state courts are now moving forward with Slater’s direct 1

appeal, we cannot say that “there is 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). However, we caution

against such long delays in the appointment of counsel. See Dixon v. Florida, 388

F.2d 424, 425 (5 Cir. 1968) (stating that “a state of exhaustion can be reached by th

the lapse of time and at some point in time exhaustion need not be further

exhausted”). 

For all of the above reasons, we conclude that the district court properly

dismissed without prejudice Slater’s § 2254 petition for failure to exhaust statecourt remedies. Once Slater has exhausted his state-court remedies (or an

exception applies), he may timely refile his § 2254 petition.

AFFIRMED.