[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 14, 2005
No. 04-15683 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00147-CV-DF-5
RICHARD RICARDO SLATER,
Petitioner-Appellant,
versus
BRUCE CHATMAN,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 14, 2005)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Richard Ricardo Slater, a Georgia prisoner proceeding pro se, appeals the
district court’s dismissal without prejudice of his 28 U.S.C. § 2254 petition for
failure to exhaust state-court remedies. After review, we affirm.
In this case, there is no dispute that Slater has failed, in fact, to exhaust his
state-court remedies. Normally, this failure would automatically prohibit a federal
court from granting habeas relief. See 28 U.S.C. § 2254(b)(1)(A). However, an
exception to this general rule applies when either “there is an absence of available
State corrective process[] or circumstances exist that render such process
ineffective to protect the rights of the applicant.” Id. at §§ 2254(b)(1)(B)(i) - (ii).
Because Slater argues that his case fits the above exception, we must outline his
state-court proceedings and examine whether the exception applies.
In 2001, Slater was convicted in state court for: (1) intent to distribute
marijuana; and (2) driving with a suspended/revoked driver’s license. He was
sentenced to eight years’ probation. In 2002, Slater was convicted in state court for
cocaine trafficking within 1,000 feet of school property. On May 22, 2003,
Slater’s probationary sentence was revoked based on his conviction for cocaine
trafficking.
Slater filed both a state direct appeal and a state habeas petition challenging
his probation revocation. As of the date of the district court’s dismissal of Slater’s
§ 2254 petition, Slater’s direct appeal had been pending for 16 months. However,
for reasons unexplained in the record, it allegedly took the state 14 months to
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appoint Slater appellate counsel.
Although we have some question as to why it would take 14 months to
appoint counsel, the state courts are now moving forward with Slater’s direct
appeal.1 Given that the state courts are now moving forward with Slater’s direct
appeal, we cannot say that “there is an absence of available State corrective
process[] or circumstances exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. §§ 2254(b)(1)(B)(i) - (ii). However, we caution
against such long delays in the appointment of counsel. See Dixon v. Florida, 388
F.2d 424, 425 (5 th Cir. 1968) (stating that “a state of exhaustion can be reached by
the lapse of time and at some point in time exhaustion need not be further
exhausted”).
For all of the above reasons, we conclude that the district court properly
dismissed without prejudice Slater’s § 2254 petition for failure to exhaust state-
court remedies. Once Slater has exhausted his state-court remedies (or an
exception applies), he may timely refile his § 2254 petition.
AFFIRMED.
1
Slater’s state habeas petition has been stayed because, under Georgia state law, a prisoner’s
state habeas petition ordinarily must be stayed during the pendency of the direct appeal process. See
generally O.C.G.A. § 9-14-42; Collins v. State, 591 S.E.2d 820, 821 (Ga. 2004). Thus, we focus on
Slater’s direct appeal.
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