The opinion
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
VICTOR JANDELL CULVER, )
# 255612, )
)
Petitioner, )
) CIVIL ACTION NO.
v. ) 1:20-CV-769-ECM-SRW
) [WO]
DONALD VALENZA, et al., )
)
Respondents. )
RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION
This case is before the court on a petition for writ of habeas corpus under 28 U.S.C. § 2254
filed by state prisoner Victor Jandell Culver. Doc. 7; see Doc. 1. Culver challenges the August
2020 revocation of his Alabama parole and seeks release from confinement. Respondents argue
that Culver has failed to exhaust his state court remedies regarding his parole revocation. Doc. 20.
Respondents maintain that Culver’s petition should be dismissed without prejudice so he can
exhaust his claims in the state courts. Id.
In light of the arguments and evidence presented by respondents, the court entered an order
allowing Culver to demonstrate why his petition should not be dismissed without prejudice for his
failure to exhaust state court remedies. Doc. 25. Culver filed a response indicating that he has no
objection to dismissal of his petition without prejudice. Doc. 26.
II. DISCUSSION
A prerequisite to filing a federal habeas corpus petition is that the petitioner must exhaust
his state court remedies, 28 U.S.C. § 2254(b)(1), giving the State the “‘opportunity to pass upon
and correct’ alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364,
365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)); see also
Castille v. Peoples, 489 U.S. 346, 349 (1989). “To satisfy the exhaustion requirement, the
petitioner must have fairly presented the substance of his federal claim to the state courts.” Picard,
404 U.S. at 277–78. To exhaust, “prisoners 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.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (citing 28 U.S.C. §
2254(c)).
Under Alabama law, initial review of an action by the parole board “is by a petition for a
common-law writ of certiorari filed in the Circuit Court of Montgomery County.” Henley v. State
of Alabama Board of Pardons and Paroles, 849 So.2d 255, 257 (Ala. Crim. App. 2002); see also
Johnson v. State, 729 So. 2d 897, 898 (Ala. Crim. App. 1997). A complete round of appellate
review of an adverse ruling on a petition for a common-law writ of certiorari in Alabama is (1)
appealing the denial of the petition to the Alabama Court of Criminal Appeals, see § 12-3-9, Ala.
Code 1975; (2) petitioning the Alabama Court of Criminal Appeals for rehearing, see Ala.R.App.P.
39(c)(1); and (3) seeking discretionary review in the Alabama Supreme Court, see Ala.R.App.P.
39(c). Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004).
Here, Culver has failed to exhaust any claim he may have, because he has yet to seek initial
review of the parole board’s action revoking his parole by filing a petition for a common-law writ
of certiorari in the Circuit Court of Montgomery County and has not sought appellate review of
any decision by the Circuit Court of Montgomery County. This court does not consider it
appropriate to rule on the merits of Culver’s claims without first requiring that he exhaust his state
court remedies. See 28 U.S.C. § 2254(1)(b)(2). The court therefore concludes that this § 2254
petition should be dismissed without prejudice so Culver may exhaust his state court remedies.
See 28 U.S.C. § 2254(1)(b)(2).
III. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for
writ of habeas corpus under 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE to allow
Culver to exhaust his state court remedies.
It is further
ORDERED that the parties shall file any objections to this Recommendation on or before
January 19, 2021. A party must specifically identify the factual findings and legal conclusions in
the Recommendation to which objection is made; frivolous, conclusive, or general objections will
not be considered. Failure to file written objections to the Magistrate Judge’s findings and
recommendations under 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by
the District Court of legal and factual issues covered in the Recommendation and waives the right
of the party to challenge on appeal the District Court’s order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court except upon grounds of plain error or
manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See
Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) (en banc).
DONE on this the 5th day of January, 2021.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge