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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

MARCUS TAITE, AIS 180664, : 

Petitioner, : 

vs. : CA 10-0329-KD-C 

CARTER DAVENPORT, et al., : 

Respondents. 

REPORT AND RECOMMENDATION

Marcus Taite, an Alabama prison inmate presently confined at G.K. Fountain 

Correctional Facility, in Atmore, Alabama, has petitioned this Court for habeas corpus 

relief pursuant to 28 U.S.C. ' 2254.1

 Petitioner is challenging the April 7, 2010 decision 

of the Alabama Board of Pardons and Parole denying his request for a pardon/parole. 

This matter has been referred to the undersigned for the entry of a report and 

 

1

 Taite’s petition contains numerous citations to 28 U.S.C. § 2241. (Doc. 1, at 4, 8, 11, 12 

& 15; see also Doc. 9, “Analysis”) Regardless of which section petitioner is proceeding under, 

the result is the same. See Dill v. Holt, 371 F.3d 1301, 1302-1303 (11th Cir. 2004) (“‘[T]he writ 

of habeas corpus is a single post-conviction remedy principally governed by two different 

statutes,’ § 2241 and § 2254, with the second of those statutes serving to limit the authority 

granted in the first one. For that reason, even though Dill brought his petition seeking relief 

under § 2241, he is nevertheless subject to § 2254’s exhaustion requirement if he is ‘in custody 

pursuant to the judgment of a State court.’ And he is.” (internal citation omitted)). 

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recommendation pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 72.1(c). It is 

recommended that the instant petition be dismissed without prejudice to allow Taite the 

opportunity to exhaust his state remedies.2

FINDINGS OF FACT

1. According to the allegations gleaned from the petition for writ of habeas 

corpus filed on June 25, 2010 (Doc. 1), Taite was convicted of second-degree burglary in 

1999 in an unidentified Alabama circuit court and, on November 2, 1999, was sentenced 

to life imprisonment (see id. at 2). 

 

2

 Tate’s motion for evidentiary hearing (Doc. 3), his request for a habeas corpus injunction 

(Doc. 4), and his request for discovery and inspection of documents (Doc. 5), are DENIED. His 

most recently filed motion, that is, his motion to proceed without prepayment of fees (Doc. 9), is 

determined to be MOOT in light of the contents of this report and recommendation. 

2. In his petition filed in this Court, Taite adamantly states that he is not 

challenging his “conviction of Nov 2, 1999[]” (id. at 14), but then, like a Whirling 

Dervish, he tergiversates and claims that the Alabama Board of Pardons and Paroles 

should have granted him a full pardon, or at least parole, on April 7, 2010 since he is 

actually innocent of the second-degree burglary for which he stands convicted (see, e.g., 

id. at 3 & 6). 

3. It is apparent from Taite=s federal habeas petition that petitioner has not 

filed a petition for writ of certiorari in the Circuit Court of Montgomery, Alabama, and 

appealed same to Alabama’s appellate courts, to challenge the April 7, 2010 decision of 

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the Board of Pardons and Paroles. (See Doc. 1) According to petitioner, it would be 

futile for him to file a petition for writ of certiorari in the Montgomery County circuit 

court since he has sued, in a civil case, all the judges of that court. (See id. at 6, 8 & 

10-12) 

CONCLUSIONS OF LAW

1. A district court has the power under Rule 4 of the Rules Governing Section 

2254 Cases Ato examine and dismiss frivolous habeas petitions prior to any answer or 

other pleading by the state.@ Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Rule 

4 provides, in pertinent part, that A[i]f it plainly appears from the petition and any attached 

exhibits that the petitioner is not entitled to relief in the district court, the judge must 

dismiss the petition and direct the clerk to notify the petitioner.@ 28 U.S.C. foll. ' 2254, 

Rule 4. 

2. A claim for federal habeas corpus relief is not exhausted so long as a 

petitioner Ahas the right under the law of the State to raise, by any available procedure, the 

question presented.@ 28 U.S.C. ' 2254(c). ASection 2254(c) requires only that state 

[petitioners] give state courts a fair opportunity to act on their claims.@ See O=Sullivan v. 

Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (emphasis in 

original; citations omitted). ABecause the exhaustion doctrine is designed to give the 

state courts a full and fair opportunity to resolve federal constitutional claims before those 

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claims are presented to the federal courts, we conclude that state [petitioners] 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.@ Id. at 845, 119 S.Ct. 

at 1732; see Heck v. Humphrey, 512 U.S. 477, 480-481, 114 S.Ct. 2364, 2369, 129 

L.Ed.2d 383 (1994) (AThe federal habeas corpus statute . . . requires that state [petitioners] 

first seek redress in a state forum.@); Preiser v. Rodriguez, 411 U.S. 475, 477, 93 S.Ct. 

1827, 1830, 36 L.Ed.2d 439 (1973) (AIf . . . 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.@). 

3. A habeas claim is deemed to be exhausted when Ait is fair to assume that 

further state proceedings would be useless.@ Castille v. Peoples, 489 U.S. 346, 351, 109 

S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989). This standard is met when the precise issue 

raised in a habeas petition has been Afairly presented@ to the state=s highest court. See id. 

(citation omitted). The exhaustion requirement is not met Awhere 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 & 

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7-8, 103 S.Ct. 276, 277 & 278, 74 L.Ed.2d 3 (1982). Each and every claim raised in the 

petition must be exhausted to the state=s highest court and it is the petitioner=s burden to 

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

509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982) (A[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.@); 

Morales v. Shannon, 2007 WL 1877977, *3 (E.D. Pa. 2007) (AA petitioner must exhaust 

state remedies as to each of his federal claims.@); United States ex rel. Quezada v. 

Uchtman, 2006 WL 3341200, *2 (N.D. Ill. 2006) (A[T]he petitioner must properly assert 

each claim at each and every level in the state court system, either on direct appeal of his 

conviction or in post-conviction proceedings.@). 

4. The exhaustion requirement is excused if Athere 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) (AA 

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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) (AState 

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) (AIt is true that under Fay v. Noia, the 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.@). 

5. It is clear under Alabama law, that one complete round of review of a 

decision by the Alabama Board of Pardons and Paroles denying parole/pardon includes: 

“(1) filing a petition for certiorari in state circuit court[;]3

 (2) appealing the denial of that 

 

3

 “A petition for a writ of certiorari filed in the circuit court is the proper method to 

challenge a ruling of the Alabama Board of Pardons and Paroles.” Johnson v. State, 729 So.2d 

897, 898 (Ala.Crim.App. 1997); see also Bostwick v. Alabama Board of Pardons & Paroles, 865 

So.2d 1245, 1246 (Ala.Crim.App. 2003) (“’In the absence of the right to appeal or other 

adequate remedy, the writ of certiorari lies to review the rulings of an administrative board or 

commission.’”); Tedder v. Alabama Board of Pardons & Paroles, 677 So.2d 1261, 1262 

(Ala.Crim.App.) (“A petition for a writ of certiorari filed in the Circuit Court is the correct 

method to challenge an administrative board’s ruling.”), cert. denied, 518 U.S. 1008, 116 S.Ct. 

2531, 135 L.Ed.2d 1054 (1996). 

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petition to the Alabama Court of Criminal Appeals[;] (3) petitioning the Alabama Court 

of Criminal Appeals for rehearing[;] and (4) seeking discretionary review in the Alabama 

Supreme Court[.]” Dill, supra, 371 F.3d at 1303 (internal citations omitted; footnote 

added). By his own admission, Taite has failed to pursue these state remedies and his 

argument that it would be futile for him to exhaust his state remedies since he has sued all 

the judges on the Montgomery County Circuit Court cannot withstand scrutiny since it is 

clear, based upon Exhibit A attached to the petition,4

 that the judges of that court, if 

necessary, will recuse themselves and petitioner will receive an unbiased decision on his 

certiorari petition from an impartial circuit judge sitting elsewhere in Alabama. More 

importantly, petitioner’s argument in this regard does not establish that Alabama’s 

appellate courts should not be given the opportunity to consider his claims in the first 

instance regarding a decision by an Alabama administrative body. Compare Johnson, 

supra, 729 So.2d at 898 (“Judicial review of administrative acts and decisions is limited 

 

4

 Exhibit A is simply a criminal case action summary sheet from the Circuit Court of 

Montgomery County, Alabama reflecting a charge against petitioner from 2008 for promoting 

prison contraband and also reflecting a docket sheet entry dated June 2, 2009 wherein all judges 

of that court recused themselves from petitioner’s case. (Doc. 1, Exhibit A) Taite’s prison 

contraband case was then transferred to a circuit judge in Dale County and apparently remains 

pending. (See id.) The action of all judges of the Circuit Court of Montgomery County, Alabama 

in recusing themselves in the prison contraband case simply does not reflect, as Taite argues, that 

he is being denied access to the Circuit Court of Montgomery County, Alabama for purposes of 

filing a writ of certiorari challenging the decision of the Alabama Board of Pardons and Paroles 

in this case. Petitioner has full access to that court for purposes of filing a certiorari petition. For 

the sake of all concerned, however, including petitioner himself, a circuit judge outside 

Montgomery County, Alabama may well be transferred any such petition filed by Taite. 

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in scope; ordinarily the courts will pass only on the questions whether the administrative 

agency has acted within its constitutional or statutory powers, whether its order or 

determination is supported by substantial evidence, and whether its action is reasonable 

and not arbitrary.”) with Strong v. Alabama Board of Pardons & Paroles, 859 So.2d 

1201, 1204 (Ala.Crim.App. 2001) (“The right to a parole is a privilege granted by the 

people of Alabama to those committed to our penal institutions as punishment for crimes. 

Obtaining an early release through parole, like obtaining a pardon, is wholly contingent 

upon either the grace of the detaining authority or some affirmative statutory entitlement. 

While no constitutional or inherent right of a convicted person to be conditionally 

released prior to the expiration of a valid sentence exists, a prisoner has the right to be 

properly considered for parole. The paroling authority must comply with constitutional 

requirements and may not determine parole eligibility on improper grounds. A parole 

should not be denied for false, insufficient, or capricious reasons.” (internal citations and 

quotation marks omitted)). Clearly, Alabama courts, in the first instance, as opposed to 

this Court, should consider challenges by Alabama prisoners to decisions of the Alabama 

Board of Pardons and Paroles denying parole. Because Taite has not met 

§ 2254(b)(1)(A)’s exhaustion requirement, this action should be dismissed without 

prejudice to allow him the opportunity to exhaust state remedies. 

6. Pursuant to Rule 11(a) of the Rules Governing ' 2254 Cases, the 

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undersigned recommends that a certificate of appealability in this case be denied. 28 

U.S.C. foll. ' 2254, Rule 11(a) (AThe district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant.@). The habeas corpus 

statute makes clear that an applicant is entitled to appeal a district court=s denial of his 

habeas corpus petition only where a circuit justice or judge issues a certificate of 

appealability. 28 U.S.C. ' 2253(c)(1). A certificate of appealability may issue only 

where Athe applicant has made a substantial showing of the denial of a constitutional 

right.@ 28 U.S.C. ' 2243(c)(2). Where, as here, a habeas petition is being denied on 

procedural grounds without reaching the merits of the underlying constitutional claims, Aa 

COA should issue [only] when the prisoner shows . . . that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.@ Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 

L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 

154 L.Ed.2d 931 (2003) (AUnder the controlling standard, a petitioner must >sho[w] that 

reasonable jurists could debate whether (or, for that matter, agree that) the petition 

should have been resolved in a different manner or that the issues presented were 

Aadequate to deserve encouragement to proceed further.@=@). Inasmuch as Taite has not 

exhausted his claims in the state courts of Alabama and this Court must dismiss all of his 

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claims to allow him to return to state court to exhaust his state remedies as to these 

unexhausted claims, compare Jimenez v. Florida Dept. of Corrections, 481 F.3d 1337, 

1342 (11th Cir.) (AIf a petitioner has not exhausted all claims in a petition, a federal court 

must dismiss without prejudice both exhausted and unexhausted claims to allow 

petitioners to return to state court to exhaust state remedies for all claims.@), cert. denied 

sub nom. Jimenez v. McDonough, 552 U.S. 1029, 128 S.Ct. 628, 169 L.Ed.2d 405 (2007) 

with Dill, supra, 371 F.3d at 1303 (“The district court was correct to dismiss his habeas 

petition for failure to exhaust state court remedies.”), a reasonable jurist could not 

conclude either that this Court is in error in dismissing the instant petition or that Taite 

should be allowed to proceed further, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 

(AWhere a plain procedural bar is present and the district court is correct to invoke it to 

dispose of the case, a reasonable jurist could not conclude either that the district court 

erred in dismissing the petition or that the petitioner should be allowed to proceed 

further.@). 

CONCLUSION

The Magistrate Judge recommends that Marcus Taite’s petition for writ of habeas 

corpus, filed pursuant to 28 U.S.C. ' 2254, be dismissed, without prejudice, to allow 

petitioner the opportunity to fully exhaust his state court remedies. Petitioner is not 

entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma 

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pauperis.

The instructions which follow the undersigned=s signature contain important 

information regarding objections to the report and recommendation of the Magistrate 

Judge. 

DONE this the 30th day of July, 2010. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

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

fourteen (14) days of the date of service of this document, file specific written objections with the Clerk 

of this 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 days5

 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. 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 case 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.

 5

 Effective December 1, 2009, the time for filing written objections was extended 

to A14 days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 

72(b)(2). 

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