IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LEO LAMONICA FLEETON, : 

Petitioner, : 

v. : CIVIL ACTION 04-0810-BH-M 

STEPHEN BULLARD, : 

Respondent. : 

REPORT AND RECOMMENDATION

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

inmate which has been referred for report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8 of the Rules

Governing Section 2254 Cases. Petitioner was convicted of

murder in the Circuit Court of Mobile, following a guilty

plea, on March 28, 2003 for which he received a sentence of

life in the State penitentiary (Doc. 4, pp. 1-2). 

Petitioner filed a complaint with this Court on December

20, 2004, raising the following claims: (1) The sentence

exceeds the maximum sentence allowed by law; (2) he was not

given notice that he would be sentenced under the Habitual

Offender Act of Alabama; and (3) he was not notified of the

sentence range he was facing under the Habitual Offender Act

(Doc. 4 Supplement; see also Doc. 14, p. 3). Respondent

asserts that Petitioner has never raised the third claim in

Case 1:04-cv-00810-BH-M Document 15 Filed 07/21/05 Page 1 of 4
 

1Petitioner should bear in mind that Rule 9(b) of the Rules

Governing Habeas Corpus Cases under Section 2254 provides for

the dismissal of successive habeas petitions if Petitioner

raises new claims and does not meet the burden of proving that

his "failure to raise the issue in his first petition was not

the result of intentional withholding or inexcusable neglect." 

Ritter v. Thigpen, 828 F.2d 662, 664 (11th Cir. 1987).

2

the State courts and that he has a remedy available to him

(Doc. 14, pp. 4-6).

The evidence of record provides no indication that Petitioner has ever raised the third claim by any appropriate

state procedure before filing this petition. It would appear,

then, that Petitioner has failed to exhaust his state remedies

with regard to his claim that he was not notified of the

sentence range he was facing under the Habitual Offender Act. 

Respondent has claimed procedural default as to Fleeton’s

second claim and admitted exhaustion on the first claim (Doc.

11, pp. 3-4, 6-7). As Petitioner has stated a claim in this

court, i.e., claims one and two, but has raised a claim not

yet exhausted in the state courts, i.e., claim three,

Petitioner 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, Petitioner has the option of amending his complaint and pursuing

the exhausted claims,1 or requesting that the petition be

Case 1:04-cv-00810-BH-M Document 15 Filed 07/21/05 Page 2 of 4
3

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, Petitioner is ORDERED to file a pleading in

this Court, not later than August 10, 2005, making known his

wishes with regard to this petition. Specifically, Fleeton

should tell the Court that he wishes to either: 1) dismiss

this petition without prejudice to allow him to exhaust all

claims or 2) dismiss claim three and proceed with the action

on claims one and two. Unless the Petitioner notifies the

court as set out above, it is recommended that the petition be

denied in its entirety, without prejudice, so that Petitioner

can exhaust state remedies.

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

Case 1:04-cv-00810-BH-M Document 15 Filed 07/21/05 Page 3 of 4
4

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.

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 21st day of July, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:04-cv-00810-BH-M Document 15 Filed 07/21/05 Page 4 of 4