RAPPSODI R. ALI, PETITIONER-APPELLANT,
v.
STATE OF FLORIDA, RESPONDENT-APPELLEE

11th Cir. | 1985-12-11
No. 85-3117
Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.
777 F.2d 1489 Court of Appeals for the Eleventh Circuit (1985) Positive Treatment
Cited by 3 cases

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Holding

A federal habeas corpus petition must be dismissed if the petitioner has failed to exhaust available state remedies, and remand is futile if the state asserts exhaustion as a defense.

Facts & Procedural History

Appellant filed a pro se petition for a writ of habeas corpus, which the district court summarily dismissed for failure to exhaust state remedies. The…

The full statement of facts, procedural history, and disposition for this case are member content.

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Topics
Pro Se Petition Federal Habeas Corpus Exhaustion Of State Remedies Petition For Writ Of Habeas Corpus

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Opinion of the Court
PER CURIAM:

PER CURIAM:

Appellant Rappsodi R. Ali appeals from a district court order summarily dismissing his pro se petition for a writ of habeas corpus, before any response was filed by the state. The district court found that it was clear from the face of Ali’s petition that he had failed to exhaust available state remedies as to each of the issues he had raised in his petition.

A petition for habeas corpus relief must be dismissed if the petitioner has failed to exhaust the remedies available in state court. 28 U.S.C. § 2254(b). In his petition, Ali acknowledged that two of his claims had not previously been presented in any other court. If any of the issues raised in a habeas corpus petition has not been exhausted, the petition as a whole must be dismissed. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). Although we have held that a habeas petition may not be dismissed for failure to exhaust state remedies before the state has responded and either set out a nonexhaustion defense or waived exhaustion, David v. Spears, 739 F. 2d 634, slip op. at 2 (11th Cir.1984) (unpublished opinion),1 in this case it would be futile to remand the case because it is clear from the state’s brief on appeal that it would not waive the exhaustion issue.

Because it is clear that the state is asserting exhaustion as a defense, and because it is clear that Ali did not exhaust available state remedies, the judgment of the district court is

AFFIRMED.2

. In David, the petitioner alleged that he had exhausted his state remedies. Prior to the state’s response, however, the district court dismissed his petition for failure to exhaust. This court held that because the state had not had an opportunity to either assert a nonexhaustion defense or waive same, and because the record did not indicate whether petitioner failed to exhaust, the district court erred in dismissing his petition for failure to exhaust.

. Ali's motion to strike the appendix to the state’s brief on appeal is DENIED as moot. His motion for appointment of counsel, treated as a motion for reconsideration of this court's order of May 14, 1985, which denied appointment of counsel, is DENIED.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Davis v. Dugger, 829 F.2d 1513 (11th Cir. 1987)
    …07 S.Ct. 1671, 95 L.Ed.2d 119 (1987). The district court therefore erred in dismissing the habeas petition for failure to exhaust state remedies before the state responded and either set out an exhaustion defense or waived exhaustion. AH v. Florida, 777 F. 2d 1489 (11th Cir. 1985) (per curiam); David v. Spears, 739 F. 2d 634, slip op. at 2 (11th Cir. July 17, 1984) (unpublished opinion). We therefore reverse the district court’s order dismissing Davis’s habeas petition and remand the case for consideration o…
  • Santos v. United States, 982 F.3d 1303 (11th Cir. 2020)
    …1277, 1282 (11th Cir. 2001) (denying a remand for the district court to perform a jurisdictional analysis where remand would be futile because appellate counsel had not provided any basis on which its client could prevail on remand); Ali v. Florida, 777 F.2d 1489, 1490 (11th Cir. 1985) (denying remand of a habeas petition where petitioner clearly could not obtain relief on remand). Accordingly, we AFFIRM the denial of the applicant's § 2255 petition. [fn 1]: Because the judge who had sentenced Santos in 19…

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