IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RONNIE JAMES, : 

Petitioner, : 

v. : 

CIVIL ACTION 05-0664-BH-M

KENNETH L. JONES, : 

 

Respondent. : 

REPORT AND RECOMMENDATION

This is an action under 28 U.S.C. § 2254 by an Alabama

inmate which was referred for report and recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B), Local Rule 26, and Rule 8 of the

Rules Governing Section 2254 Cases. 

Petitioner was convicted of manslaughter in the Circuit

Court of Escambia County on June 12, 2002 and received a sentence

of life in the state penitentiary (Doc. 1, pp. 1-2; Doc. 23, p.

1). Appeal was made to the Court of Criminal Appeals of Alabama

which affirmed on August 22, 2003 (Doc. 1, p. 3; Doc. 23, p. 3);

the Alabama Supreme Court denied certiorari on December 12, 2003

(Doc. 1, p. 4; Doc. 23, p. 3). James has also filed two State

Rule 32 petitions, the second of which still has claims pending

before the Alabama Supreme Court (Doc. 1, pp. 4-6; Doc. 23, pp.

3-10). Petitioner filed a federal habeas petition which this

Court received on November 14, 2005, raising, what appears to be,

the claims he raised on direct appeal and in his first and second

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Petitioner should bear in mind that Rule 9 of the Rules

Governing Habeas Corpus Cases under Section 2254 states the following: 

“Before presenting a second or successive petition, the petitioner

must obtain an order from the appropriate court of appeals authorizing

the district court to consider the petition as required by 28 U.S.C. §

2244(b)(3) and (4).”

2

State Rule 32 petitions (see Doc. 1).

Respondent has noted in his Answer that Petitioner has

raised claims in this Court that have not yet been exhausted in

the State Courts (Doc. 23, pp. 16-19). Specifically, the claims

raised in James’s second Rule 32 petition are still pending

before the Alabama Supreme Court (id.). James admits in his

federal petition that he has claims pending before the Alabama

Supreme Court (Doc. 1, pp. 5-6). As Petitioner has stated claims

in this Court which are ready for review, but has also raised

claims not yet exhausted in the State Courts, he has a mixed

petition. See Rose v. Lundy, 455 U.S. 509 (1982).

As Petitioner has filed a mixed petition, i.e., a petition

which has both exhausted and non-exhausted claims, he has the

option of amending his complaint and pursuing the exhausted

claims,1 or requesting that the petition be dismissed without

prejudice so that he may pursue his state remedies before

refiling a habeas petition in this court. Rose v. Lundy, 455

U.S. 509 (1982). 

Therefore, it is recommended that this action be dismissed

without prejudice so that Petitioner may pursue the unexhausted

claims before the Alabama Supreme Court. Petitioner may refile a

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habeas action in this Court once he has pursued all available

remedies in the State courts. 

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 ten 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 “Statement of Objection to Magistrate Judge’s

Recommendation” within ten 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.

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2. 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.

DONE this 15th day of March, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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