Opinion
Civil Action 00-0594-BH-M
April 9, 2001
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 72.2(c)(4), and Rule 8 of the Rules Governing Section 2254 Cases. This action is now ready for consideration. The state record is adequate to determine Petitioner's claims; no federal evidentiary hearing is required. It is recommended that this habeas petition be dismissed without prejudice so that Petitioner can pursue his unexhausted State court remedies.
Petitioner plead guilty to a charge of receiving stolen property first degree in the Circuit Court of Baldwin County on September 11, 1997 for which he received a suspended sentence of five years in the state penitentiary; Page was placed on probation for the five year period (Doc. 16, Exhibit A). On April 29, 1999, Petitioner's probation was revoked because, inter alia, he had been convicted of robbery third degree; he was committed to the Alabama Department of Corrections to serve the five year sentence on the receiving stolen property conviction, which was to run concurrent with the robbery conviction (Doc. 24, Exhibit B). Page apparently did not appeal the revocation of his probation (Doc. 11, P. 3)
Petitioner filed a complaint with this Court on May 24, 2000 raising the following claims: (1) He was subjected to an illegal arrest; (2) his attorney rendered ineffective assistance; and (3) his sentence violated double jeopardy (Docs. 1, 11, 12). Though Respondent argues otherwise (Doc. 27, pp. 2-3), the Court finds that these claims specifically relate to Page's probation revocation and not his original sentence.
Respondent has asserted that these claims have never been properly raised in the State courts (Doc. 27, p. 3). Though Page filed a state habeas petition (see Doc. 11, p. 3), that is not the proper vehicle for challenging a probation revocation. See Frank v. Moseley, 2000 WL 206901 at p. 3 (S.D. Ala. February 9, 2000) ( citing Patton v. State, 623 So.2d 452 (Ala.Crim.App. 1993)). The proper vehicle is a State Rule 32 petition.
Petitioner's claims in this habeas petition are unexhausted in the state courts. As long as Page has a remedy available in the State courts, this Court can not address those claims under 28 U.S.C. § 2254 (c).
Therefore, it is recommended that this action be dismissed, without prejudice, so that Petitioner can pursue his State court 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 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.