Eutsey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JIMMY DERRICK EUTSEY, )

AIS#194555, )

)

Petitioner, )

)

v. ) CASE NO. 2:23-cv-00317-RAH-CSC

)

GWENDOLYN DAVIS, et al., )

)

Respondents. )

MEMORANDUM OPINION AND ORDER

This case is before the Court on pro se Petitioner Jimmy Derrick Eutsey’s petition

for writ of habeas corpus under 28 U.S.C. § 2254. For the reasons below, Eutsey’s petition

will be dismissed for failure to exhaust his claims in state court. A certificate of

appealability will not be issued.

BACKGROUND

Eutsey challenges the three consecutive 25-year sentences he received in 1997 for

first-degree robbery, first-degree rape, and first-degree sodomy. He claims he is being

unlawfully held because his 1997 plea deal with the prosecutor required that he serve only

8 years of each 25-year sentence. (Doc. 1.) Thus, according to Eutsey, the plea deal was

breached when he was not released after 24 years.

Eutsey pleaded guilty to the three charges on August 8, 1997, in Bullock County,

Alabama. (Doc. 1.) Eutsey was 16 years old at the time of the crimes, and the victim was

77 years old. (Doc. 13-1 at 12, 39.) Pursuant to a plea agreement with the prosecutor,

Eutsey was sentenced to 25 years on each charge, each to run consecutive.

The transcript of the plea hearing makes clear that Eutsey’s agreement with the

prosecutor was 25 years on each count. In response to a question by the sentencing judge

about “how much time does that involve,” the prosecutor stated that he called the Alabama

Department of Corrections about these similar situations, and was told that it was “probably

eight years on each sentence” but “I can’t tell you that its what it is” but “that is kind of

what I am anticipating.” (Doc. 17-1 at 4-5.) The prosecutor added that

“probably the best I understand, is each term he might serve seven to eight years on each

one.” (Id. at 5.)

Following this discussion, Eutsey was again informed that the sentences would be

25 years on each, to run consecutive. (Id. at 12.) Thereafter, Eutsey pleaded guilty to all

three charges. (Id. at 21.) He was also told that he would not get the benefit of early release

or any good time in the incentive program to shorten his sentence. (Id.) Eutsey did not

appeal his convictions or sentence.

Since then, Eutsey has filed four Rule 32 petitions. Eutsey filed his first Rule 32

petition on March 5, 1999. That petition was dismissed after an evidentiary hearing, with

the Rule 32 court finding that Eutsey’s guilty plea was knowing and voluntary and that his

legal counsel was not ineffective. (Doc. 13-1 at 67, 69.) He did not appeal.

Eutsey filed his second Rule 32 petition on February 6, 2014. (Doc. 13-1.) In that

petition, as amended, he raised a Miller challenge, claiming that his sentence was illegal

and in violation of the Eighth and Fourteenth Amendments because he was a juvenile at

the time of the crimes. (Doc. 13-1 at 78–91.) That petition was dismissed by the circuit

court, finding that Miller was inapplicable to Eutsey. (Docs. 13-1 at 71, 96.) Eutsey then

appealed to the Alabama Court of Criminal Appeals, which denied his appeal, finding

Miller inapplicable also. (Doc. 13-3.) Eutsey’s application for rehearing and for a writ of

certiorari were denied. (Docs. 13-7; 13-8; 13-10.)

On June 14, 2021, Eutsey filed his third Rule 32 petition, labeling it a “Motion to

Mandatorily Enforce Plea Agreement.” (Doc. 17-4.) In this petition, Eutsey stated that the

record showed that he would only serve seven to eight years on each consecutive sentence.

He also stated that “[i]t is a violation of law and a breach of Eutsey’s plea agreement for

the Alabama Board of Pardons and Paroles and ADOC’s Central Record not to agree to

the Court’s sentencing order.” (Doc. 17-4 at 2.) This motion was denied on June 15, 2021.

(Doc. 17-5.) Eutsey did not appeal.

On July 15, 2024, Eutsey filed his fourth petition, requesting to be resentenced under

the voluntary sentencing guidelines. (Doc. 17-3.) That petition was denied on September

5, 2024. He did not appeal.

Between the dismissal of his third and fourth petitions, on May 12, 2023, Eutsey

filed this § 2254 petition concerning the alleged breach of the plea agreement.

DISCUSSION

A petitioner must exhaust state court remedies before seeking relief through a

federal habeas corpus petition. 28 U.S.C. § 2254(b)(1). This ensures the State has an

“‘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)); see also Castille v. Peoples, 489 U.S. 346, 349 (1989).

To meet the exhaustion requirement, the federal habeas petitioner must have “‘fairly

presented’ to the state courts the ‘substance’ of his federal habeas claim.” Lucas v. Sec’y,

Dep’t of Corrs., 682 F.3d 1342, 1353 (11th Cir. 2012) (quoting Anderson v. Harless, 459

U.S. 4, 6 (1982)). In other words, he “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). This one

complete round can be satisfied either through a direct appeal to the Alabama appellate

courts or through a post-conviction petition for collateral review under Rule 32 of the

Alabama Rules of Criminal Procedure. See Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir.

2010); Pruitt v. Jones, 348 F.3d 1355, 1359 (11th Cir. 2003). In Alabama, a complete round

of the established appellate review process includes an appeal to the Alabama Court of

Criminal Appeals, an application for rehearing to that court, and a petition for discretionary

review to the Alabama Supreme Court. See Smith v. Jones, 256 F.3d 1135, 1140–41 (11th

Cir. 2001); see also Dill v. Holt, 371 F.3d 1301, 1303 (11th Cir. 2004) (“A complete round

of the state appellate process includes discretionary appellate review ‘when that review is

part of the ordinary appellate review procedure in the State.’”); Wrenn v. Toney, No. 21-

123337-E, 2022 WL 966398, at *1 (11th Cir. Feb. 10, 2022) (finding claims procedurally

barred because petitioner failed to exhaust claims, as he did not appeal denial of Rule 32

petition); Ala. R. Crim. P. 32.1(f), 32.2(c); Ala. R. App. P. 39 & 40.

Furthermore, “[f]ederal courts are authorized to dismiss summarily any habeas

petition that appears legally insufficient on its face[.]” McFarland v. Scott, 512 U.S. 849,

856 (1994) (citing 28 U.S.C. § 2254 Rule 4). The Eleventh Circuit has affirmed such sua

sponte dismissals without prejudice for unexhausted habeas petitions. See, e.g., Esslinger

v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995).

Based on a review of Eutsey’s § 2254 petition and the state court records, Eutsey

failed to exhaust his state court remedies regarding the claims in his current petition. Eutsey

was convicted in 1997 but did not file a direct appeal, filed his first petition in March 1999

but did not appeal, and then filed his second petition in July 2000 and did appeal although

unsuccessfully. Eutsey then filed his third petition (the one raising the breach of the plea

agreement allegation) on June 14, 2021, which was denied by the state circuit court on June

15, 2021, but he did not appeal the lower court’s denial order to the Alabama Court of

Criminal Appeals. Instead, he filed this § 2254 petition on May 12, 2023, raising the same

allegations concerning the alleged breach of his plea agreement as he did in his third Rule

32 petition. And he then filed a fourth Rule 32 petition on July 15, 2024, seeking to be

resentenced. Putting aside the issues of whether Eutsey’s current petition is time-barred1

or precluded as a successive petition, Eutsey has not exhausted his claim since he did not

appeal the denial of his third Rule 32 petition to the Alabama Court of Criminal Appeals.

Thus, as a general rule, this Court cannot address the merits of his § 2254 motion.2

CONCLUSION

Accordingly, it is ORDERED that Petitioner Jimmy Derrick Eutsey’s petition for

writ of habeas corpus under 28 U.S.C. § 2254 is DISMISSED without prejudice for failure

to exhaust his state court remedies. Because Petitioner has not “made a substantial showing

of the denial of a constitutional right,” a certificate of appealability will not be issued. 28

1 Eutsey’s petition is time-barred, as he filed this § 2254 petition 23 months after the Alabama Court of

Criminal Appeals denied his appeal.

2 The state court record shows that Eutsey was considered for parole in December 2016 (nearly 20 years

into his sentences) and January 2019 (22 years into his sentences), but was denied both times.

U.S.C. § 2253. Final judgment will be entered separately.

DONE, on this the 5th day of February 2026.

R. AUSTIN □□ JR.

CHIEF UNITED STATES DISTRICT JUDGE