IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

NEKESAH SIMON, ) 

) 

Petitioner, ) 

) 

v. ) CIVIL ACTON NO. 09-369-CB-N 

) 

CYNTHIA S. WHEELER-WHITE, ) 

) 

Respondent. ) 

REPORT AND RECOMMENDATION

 This action is brought pursuant to 28 U.S.C. §2254, collaterally challenging the failure to 

give petitioner credit toward her state court sentence upon her conviction on the crime of 

manslaughter in the Circuit Court of Mobile County, Alabama. This matter has been referred to 

the undersigned pursuant to 28 U.S.C. § 636. Petitioner asserts, in sum, that the sentencing court 

was required to give her credit for time she had spent on electronic monitoring while awaiting 

trial. (Doc. 6, Amended Complaint) 

 Respondent filed its Answer asserting that petitioner had not exhausted her state remedies 

(doc. 11) and the court thereafter ordered (doc. 14) petitioner to respond concerning that issue 

no later than May 30, 2010. That order set forth in detail the applicable standard and explained 

to petitioner that her claims could be dismissed without prejudice if the court found the claims to 

be unexhausted. Petitioner has failed to file a response or in any other matter contest the 

showing made by Respondent. 

 Habeas petitioners generally cannot raise claims in federal court if those claims were not 

first exhausted in state court. 28 U.S.C. § 2254(b)(1).” McNair v. Campbell, 416 F.3d 1291, 

1302 (11th Cir. 2005). “A rigorously enforced total exhaustion rule will encourage state 

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prisoners to seek full relief first from the state courts, thus giving those courts the first 

opportunity to review all claims of constitutional error.” Rose v. Lundy, 455 U.S. 509, 518 

(1982). It is uncontested that petitioner has not allowed the state courts to address the claims 

made in the instant action. A petition in the state court for writ of habeas corpus is the proper 

method under state law by which to challenge the calculation of an inmate’s term of 

imprisonment. Fuqua v. State, 910 So.2d 141, 142 (Ala. Crim. App. 2005). 

 Despite the respondent’s challenge, there is no indication in the record that petitioner has 

filed such an action,1 or that a decision on such an action has been reached. The undersigned 

thus finds that petitioner’s claims are unexhausted. 

 Accordingly, it is hereby RECOMMENDED that this action be DISMISSED without 

prejudice to allow petitioner to exhaust her state remedies. 

 The instructions that follow the undersigned=s signature contain important information 

regarding objections to the report and recommendation of the Magistrate Judge. 

 DONE this 16th day of July, 2010. 

 /s/ Katherine P. Nelson 

 UNITED STATES MAGISTRATE JUDGE 

 

 

 1

 Respondent notes that an unidentified motion was filed on June 12, 2009, in state court, 

a little over a month before filing the instant action on July 23, 2009. Though respondent was 

unable to obtain a copy of that motion, it does not appear that the Circuit Court has ruled on it. 

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS 

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS 

CONCERNING NEED FOR TRANSCRIPT

Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen days of the date of service of this document, file specific written objections with the 

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything 

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate 

judge. See 28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); 

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for 

challenging the findings and recommendations of the magistrate judge is set out in more detail in 

SD ALA LR 72.4 (June 1, 1997), which provides that: 

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by 

filing a AStatement of Objection to Magistrate Judge=s Recommendation@ within 

ten [now fourteen] days after being served with a copy of the recommendation, 

unless a different time is established by order. The statement of objection shall 

specify those portions of the recommendation to which objection is made and the 

basis for the objection. The objecting party shall submit to the district judge, at 

the time of filing the objection, a brief setting forth the party=s arguments that the 

magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief 

submitted to the magistrate judge, although a copy of the original brief may be 

submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an 

abandonment of the objection. 

A magistrate judge=s recommendation cannot be appealed to a Court of Appeals; only the 

district judge=s order or judgment can be appealed. 

Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. '

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this 

action are adequate for purposes of review. Any party planning to object to this 

recommendation, but unable to pay the fee for a transcript, is advised that a judicial 

determination that transcription is necessary is required before the United States will pay the cost 

of the transcript. 

 /s/ Katherine P. Nelson 

 UNITED STATES MAGISTRATE JUDGE 

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