1

 The undersigned has conducted a careful review of the record and finds that no

evidentiary hearing is required to resolve this case. Kelley v. Secretary for Dep't of Corrections,

377 F.3d 1317 (11th Cir.2004). 

2

 The fact as stated herein are drawn from plaintiff’s allegations in his habeas petition

(doc. 15) filed in this action.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHRISTOPHER LENARD PUGH, )

)

Plaintiff, )

)

v. ) CIVIL ACTON NO. 09-0507-WS-N

)

WARDEN KENNETH JONES, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Christopher Lenard Pugh, a state inmate in the custody of Respondents, has petitioned

the Court for federal habeas corpus relief pursuant to 28 U.S.C. §2254 (doc. 1). The petition has

been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to

28 U.S.C. § 636(b)(1)(B), Local Rule 72.2(c)(4), and Rule 8 of the Rules Governing Section

2254 Cases.1 The undersigned has reviewed the petition (doc. 1), respondent’s answer (doc. 20)

and petitioner’s rebuttal (doc. 22), and upon careful consideration of these documents and the

evidentiary materials, it is recommended that this action be dismissed without prejudice to allow

the petitioner the opportunity to exhaust his state remedies.

FINDINGS OF FACT 2

Pugh pled guilty to two counts of burglary (second degree) and one count of receiving

stolen property in the Circuit Court of Mobile County, Alabama, on March 17, 2008. He

Case 1:09-cv-00507-WS-N Document 24 Filed 03/16/10 Page 1 of 7
appealed to the Court of Criminal Appeals, filed a petition for rehearing, and filed for

discretionary review in the Alabama Supreme Court; all such efforts were unsuccessful. 

Pugh thereafter filed a petition pursuant to Ala.R.Crim.P. 32 in the Circuit Court of

Mobile County, alleging violation of due process and his Fourth, Fifth, Sixth and Fourteenth

Amendment rights, lack of probable cause, issuance of a warrant without probable cause, false

arrest, a fatal variance in one of his cases, lack of jurisdiction, “misrepresentation, void

revocation,” (doc. 15 at 4) and that his guilty plea was not voluntary. He subsequently filed a

motion pursuant to Ala.R.Crim.P. 24.2 for arrest of judgment in the same court, raising many of

the same claims, as well as the denial of discovery and the fact that the complaint against him

lacked detail. He states that the second motion was denied in July of 2008. He also states that,

on September 1, 2009, he filed a motion for evidentiary hearing on his Rule 32 petition; he also

responded “N/A” to the question concerning the result of that case. It thus appears from the face

of the pleadings that Pugh’s Rule 32 petition remains pending before the Circuit Court.

CONCLUSIONS OF LAW

Section 2254(b)(1) provides that a prisoner in state custody shall not be granted a writ of

habeas corpus unless the prisoner “has exhausted the remedies available in the courts of the

State.” A habeas claim is not exhausted so long as a petitioner “has a right under the law of the

state to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). “[T]he

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.” O'Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). More precisely, “[b]ecause 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, ... state prisoners must give the state courts one full opportunity

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3

 In Alabama, the established appellate review process includes an appeal to the

Alabama Court of Criminal Appeals, an application for rehearing to the Alabama Court of

Criminal Appeals, and an application for discretionary review by the Alabama Supreme Court.

See Ala. R.App. P. 4, 39, 40.

to resolve any constitutional issues by invoking one complete round of the State's established

appellate review process.”3

 Id. at 845; see also Kelley, 377 F.3d at 1344 (“The petitioner must

present his claims to the state courts such that they are permitted the ‘opportunity to apply

controlling legal principles to the facts bearing upon (his) constitutional claim.’ ”); cf. Preiser v.

Rodriguez, 411 U.S. 475, 477 (1973) (“If ... habeas corpus is the exclusive federal remedy ...,

then a [petitioner] cannot seek the intervention of a federal court until he has first sought and

been denied relief in the state courts, if a state remedy is available and adequate.”).

A habeas claim is deemed exhausted when “it is fair to assume that further state

proceedings would be useless.” Castille v. Peoples, 489 U.S. 346, 351 (1989). This standard is

met when the precise issues raised in a habeas corpus petition have been “fairly presented” to the

state's highest court. Id. (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30

L.Ed.2d 438 (1971)). The exhaustion requirement is not met “where the claim has been

presented for the first and only time in a procedural context in which the merits will not be

considered unless ‘there are special and important reasons therefor[.]’ ” Id. (citation omitted). If

the claims raised in a federal habeas corpus petition have not been exhausted, the petition should

be dismissed. See Anderson v. Harless, 459 U.S. 4, 6 -8, 103 S.Ct. 276, 277-78, 74 L.Ed.2d 3

(1982). In fact, if state supreme court review is part of a state's ordinary appellate review

process, each claim raised in Petitioner's request for habeas relief must be exhausted to the state's

highest court, Kelley, 377 F.3d 1317 at 1345, and the burden rests with the petitioner to show

that all claims have been fairly presented to that court. See Rose v. Lundy, 455 U.S. 509, 520,

Case 1:09-cv-00507-WS-N Document 24 Filed 03/16/10 Page 3 of 7
102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (“[O]ur interpretation of §§ 2254(b), (c) provides a

simple and clear instruction to potential litigants: before you bring any claims to federal court, be

sure that you first have taken each one to state court.”); Reedman v. Thomas, 305 Fed. Appx.

544, 545 (11th Cir.2008) (“[T]he petitioner must present fairly every issued raised in his federal

petition to the state's highest court, either on direct appeal or on collateral review.”).

In addition, the exhaustion requirement is excused if “there is either 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). A failure to exhaust

has been excused where, because of prior rulings, resort to the state courts would be futile. See

Allen v. State of Alabama, 728 F.2d 1384, 1387 (11th Cir.1984). Exhaustion has also been

excused where the state has unreasonably delayed in acting on the petitioner's efforts to invoke

state remedies or fails to address the petition without explanation. See, e.g., Hollis v. Davis, 941

F.2d 1471, 1475 (11th Cir.1991) (“A federal habeas petitioner need not wait until his state

petitions for relief are exhausted, if the state court has unreasonably or without explanation failed

to address petitions for relief.”), cert. denied, 503 U.S. 938, 112 S.Ct. 1478, 117 L.Ed.2d 621

(1992); Cook v. Florida Parole & Probation Comm'n, 749 F.2d 678, 679 (11th Cir.1985) (“State

remedies will be found ineffective and a federal habeas petitioner will be excused from

exhausting them in the case of unreasonable, unexplained state delays in acting on the

petitioner's motion for state relief.”). Finally, other special or exceptional circumstances may

also excuse exhaustion. See, e.g., Clarke v. Grimes, 374 F.2d 550, 551 (5th Cir.1967) (“[T]he

federal trial court has broad discretion to hear a habeas corpus petition though state remedies

have not been exhausted, if there are circumstances which demand relief to protect the rights of

the prisoner.”).

Case 1:09-cv-00507-WS-N Document 24 Filed 03/16/10 Page 4 of 7
4

 Rule 32 is a procedural mechanism for seeking post-conviction relief and is

promulgated under the rule making authority of the Alabama Supreme Court. Arthur v. State,

820 So.2d 886, 890 (Ala.Crim.App.2001). The State of Alabama is not obligated to provide this

means of post-conviction relief, see United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct.

2086 (1976); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), but to the extent that it does so

provide, Rule 32 is a state law remedy which must be pursued before the federal courts will

entertain the claims contained in a federal habeas petition.

The face of Pugh’s complaint clearly establishes that the claims presented in his habeas

petition have not been fully exhausted in the state courts. State law remedies remain available to

him with which to challenge his conviction and sentence.4

 Accordingly, the undersigned

recommends that Pugh’s habeas petition be dismissed without prejudice, so that Petitioner may

fully exhaust his remedies in the Alabama state courts.

CERTIFICATE OF APPEALABILITY

Pursuant to the changes to Rule 11 of the Rules Governing Section 2255 Procedings

which became effective December 1, 2009, the court addresses the appealability of the

recommended denial of plaintiff’s habeas petition. “A [COA] may issue only if the applicant has

made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make

such a showing, a defendant “must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,

484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), or that “the issues presented were ‘adequate to

deserve encouragement to proceed further,’ ” Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123

S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103

S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). 

In the undersigned’s view, the issues plaintiff has raised in his petition are not

sufficiently substantial to justify issuance of a certificate of appeal. As discussed above, the rule

Case 1:09-cv-00507-WS-N Document 24 Filed 03/16/10 Page 5 of 7
is clear that federal habeas relief under 28 U.S.C. §2254 is not available on unexhausted claims,

and plaintiff’s petition leaves no doubt that his state remedies have not yet been exhausted. 

It is thus recommended that the court find that no certificate of appealability should issue in this

case.

CONCLUSION

The undersigned RECOMMENDS that this action be DISMISSED without prejudice

because Pugh has failed to exhaust his available state remedies.

The attached sheet contains important information regarding this report and

recommendation.

DONE this the 16th day of March, 2010.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00507-WS-N Document 24 Filed 03/16/10 Page 6 of 7
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

 AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. 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). 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, in part, 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 “Statement of Objection to Magistrate Judge's Recommendation” within

[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.

2. Opposing party's response to the objection. Any opposing party may submit a brief opposing

the objection within ten (10) days of being served with a copy of the statement of objection.

Fed.R.Civ.P. 72; SD ALA LR 72.4(b).

3. 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/ 

UNITED STATES MAGISTRATE JUDGE

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