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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PRESTON R. SCOTT,

Petitioner,

vs. Case No.: 3:09cv328/MCR/EMT

STATE OF FLORIDA,

Respondent.

____________________________________/

SUPPLEMENT TO REPORT AND RECOMMENDATION

On October 28, 2009, the undersigned issued a Report and Recommendation recommending

that this action be dismissed for Petitioner’s failure to comply with an order of the court (see Doc.

14).1

 Although Petitioner filed no objections to the Report and Recommendation, he filed a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 13, 2009 (Doc. 16). Upon

review of Petitioner’s petition, however, the undersigned concludes that it does not change the

conclusion that this action should be dismissed. 

1

 As outlined in greater detail in the Report and Recommendation, Petitioner initiated this case by filing a

motion seeking an extension of the one-year limitations period of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), set forth in 28 U.S.C. § 2244(d)(1), regarding a yet-to-be filed habeas petition. Petitioner was advised that

until he has filed a habeas petition this court lacks jurisdiction to consider its timeliness or Petitioner’s entitlement to

equitable tolling. Petitioner was therefore directed to file a habeas petition on the court-approved form no later than

September 7, 2009, and Petitioner was provided with the court-approved form (see Doc. 5). Petitioner failed to respond

to the order; therefore, on September 15, 2009, the court issued an order requiring Petitioner to show cause, within

twenty (20) days, why this action should not be dismissed for failure to comply with an order of the court (Doc. 7). For

reasons explained in the Report and Recommendation, a second order to show cause was issued on October 7, 2009,

requiring Petitioner to show cause, within twenty (20) days, why this action should not be dismissed for failure to file

a habeas petition (Doc. 10). Petitioner filed a response to the second order to show cause, but he did not file a habeas

petition, and the undersigned concluded that the reasons set forth in Petitioner’s response failed to show good cause for

his failure to comply with the order of this court directing him to file a habeas petition. Therefore, the undersigned

recommended that, “this action, initiated by Petitioner’s filing of a motion, should be dismissed for Petitioner’s failure

to comply with an order of the court.” (Doc. 14).
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In the petition, Petitioner raises three claims of ineffective assistance of trial counsel, and in

the “Supporting Facts” section of each ground for relief Petitioner states, “to be fully exhausted”

(Doc. 16 at 4–5). Moreover, in response to questions that ask whether Petitioner’s claims were

raised in the state courts, Petitioner states that each claim was raised in a motion for post-conviction

relief (id.). The petition reflects, though, that Petitioner’s Motion for Post-Conviction relief, raising 

three claims of ineffective assistance of counsel, was filed in “November, 2009” and is “pending”

(see id. at 4). 

As this court is well aware, a petition for writ of habeas corpus may not be entertained in

federal court unless Petitioner has first exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A);

Castille v. Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056, 1059, 103 L. Ed.2 d 380 (1989); Rose v.

Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Snowden v. Singletary, 135 F.3d

732, 735 (11th Cir. 1998). The courts of Florida must be given an opportunity to consider

Petitioner’s legal theory of a federal constitutional deficiency and the factual basis for that theory. 

Picard v. Connor, 404 U.S. 270, 277–78, 92 S. Ct. 509, 513, 30 L. Ed. 2d 438 (1971). In order to

exhaust the issue, Petitioner must fairly and substantially present his claim to the state court prior

to filing a petition in federal court. Castille, 489 U.S. at 351, 109 S. Ct. at 1060; Watson v. Dugger,

945 F.2d 367, 371–72 (11th Cir. 1991). “[T]he requirement of exhaustion is not satisfied by the

mere statement of a federal claim in state court.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.

Ct. 1715, 1720, 118 L. Ed. 2d 318 (1992). Instead, “the petitioner [must] afford the State a full and

fair opportunity to address and resolve the claim on the merits.” Id.; see also Footman v. Singletary,

978 F.2d 1207, 1210–11 (11th Cir. 1992). To fully exhaust, “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.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119

S. Ct. 1728, 1732, 144 L. Ed. 2d 1 (1999) (citing 28 U.S.C. § 2254(c)). Florida law requires either

an appeal of each issue, or where a motion for post-conviction relief is appropriate, the filing of such

a motion and an appeal therefrom. Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979)

(citations omitted). Failure to exhaust is proper grounds for dismissal of a federal habeas petition. 

Keeney, 504 U.S. 1 at 10.

Case No. 3:09cv328/MCR/EMT
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In the instant case, it is evident from the face of the petition that Petitioner has not exhausted

in the state courts his instant claims for relief. Moreover, it is well settled that Petitioner cannot

raise such claims in a section 2254 petition until his state court remedies have been exhausted. 

Therefore, the instant habeas petition is subject to dismissal, not only for Petitioner’s failure to

comply with orders of this court, but also because the instant federal petition (Doc. 16) was

prematurely filed.

Accordingly, Petitioner’s recently-filed § 2254 petition does not change the recommendation

of the undersigned that this action be dismissed.

FILED this 19th day of November 2009.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No. 3:09cv328/MCR/EMT