CORRECTED [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ JUNE 3,, 2004
THOMAS K. KAHN
CLERK
No. 03-10994
________________________
D. C. Docket No. 00-01574-CV-T-N
DAVID DILL, JR.,
Petitioner-Appellant,
versus
ARNOLD HOLT,
Warden,
ATTORNEY GENERAL OF ALABAMA,
STATE OF ALABAMA BOARD OF PARDONS AND PAROLES,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(JUNE 3, 2004)
Before DUBINA, CARNES and CUDAHY *, Circuit Judges.
CARNES, Circuit Judge:
David Dill, Jr., an Alabama prisoner, was convicted in an Alabama state
court of murder and sentenced to life in prison. He was released on parole after
fifteen years. After he allegedly committed two misdemeanors, his parole was
revoked and his life sentence reimposed. Unhappy with his return to prison, Dill
filed in the district court a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, alleging that the Alabama Board of Pardons and Paroles had revoked his
parole without affording him due process of law. The district court dismissed his
petition for failure to exhaust state court remedies as required by 28 U.S.C. §
2254.1
We granted Dill a certificate of appealability on the following two issues:
(1) whether a state prisoner proceeding under § 2241 must exhaust available state
remedies; and (2) if so, what steps must an Alabama prisoner challenging a parole-
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
1
Although respondents did not assert the exhaustion defense in the district court, they did
not explicitly waive it while they were there either. Under those circumstances, the court was
required to address and decide whether petitioner had exhausted his state remedies. See 28
U.S.C. § 2254(b)(3). At oral argument, respondents informed us that they now wish to explicitly
waive the exhaustion defense. That announcement comes too late. We did not grant a certificate
of appealability on whether respondents had, or wanted to, waive the exhaustion defense.
Besides, everyone agrees that because they did not explicitly waive exhaustion in the district
court, that court did what it was required to do by addressing the defense.
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revocation decision take to properly satisfy the exhaustion requirement. Dill’s
position is that a state prisoner using § 2241 to attack a parole revocation
proceeding need not satisfy the exhaustion requirement of § 2254.
Dill is seeking habeas relief pursuant to § 2241(c)(3), which authorizes it
when a petitioner “is in custody in violation of the Constitution or laws or treaties
of the United States.” Although the statutory language of § 2241 itself does not
contain a requirement that a petitioner exhaust state remedies, we have held that
the requirements of § 2254 – including exhaustion of state remedies – apply to a
subset of petitioners to whom § 2241(c)(3) applies: those who are “in custody
pursuant to the judgment of a State court.” Medberry v. Crosby, 351 F.3d 1049,
1059 (11th Cir. 2003). As Judge Black explained for this Court in Medberry, “the
writ of habeas corpus is a single post-conviction remedy principally governed by
two different statutes,” § 2241 and § 2254, with the second of those statutes
serving to limit the authority granted in the first one. 351 F.3d at 1059-62. For
that reason, even though Dill brought his petition seeking habeas relief under §
2241, he is nevertheless subject to § 2254’s exhaustion requirement if he is “in
custody pursuant to the judgment of a State court.” And he is.
Dill argues that because he was put back behind bars to serve his life
sentence after his parole was revoked in a decision by the Alabama Board of
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Pardons and Paroles, he is in custody not pursuant to the judgment of a state court
but pursuant to the decision of an administrative body. It is, however, impossible
to square that argument with the Medberry decision. In that case a state prisoner
using § 2241 to seek relief from disciplinary confinement imposed in a prison
disciplinary proceeding was held to be “in custody pursuant to the judgment of a
State court,” even though the type of custody about which he was complaining had
resulted from an administrative decision. Id. at 1061-62. Dill, likewise, is in
custody pursuant to his original state conviction and sentence, despite the fact that
his current incarceration resulted from an administrative proceeding of an
executive branch agency instead of a court. See Jones v. Cunningham, 371 U.S.
236, 243, 83 S. Ct. 373, 377 (1963) (a prisoner who is placed on parole is still “in
custody” under the unexpired part of his state sentence for purposes of the habeas
statute). Because Dill is still in custody of officials of the state pursuant to the
judgment of a state court, his § 2241 petition must comply with § 2254’s
exhaustion requirement for all of the reasons thoroughly discussed and
convincingly explained in Medberry, 351 F.3d at 1059-62. See Thomas v. Crosby,
___ F.3d ___, No. 01-11314 (11th Cir. May 26, 2004) (reaching the same
conclusion).
The next question is what state remedies there are to exhaust in this
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situation. Those remedies, § 2254(b)(1)(A) tells us, are the ones “available in the
courts of the State.” In construing the exhaustion requirement, the Supreme Court
has explained that “state prisoners must give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State’s
appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.
1728, 1732 (1999). 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.” Id. at 847, 119 S. Ct. at 1733.
Under Alabama law, “one complete round” of review of a parole revocation
decision includes: (1) filing a petition for certiorari in state circuit court, see
Johnson v. State, 729 So. 2d 897, 898 (Ala. Crim. App. 1997); (2) appealing the
denial of that petition to the Alabama Court of Criminal Appeals, see Ala. Code §
12-3-9 (2003); Johnson, 729 So. 2d at 898; (3) petitioning the Alabama Court of
Criminal Appeals for rehearing, see Ala. R. App. P. 39(c)(1); and (4) seeking
discretionary review in the Alabama Supreme Court, see Ala. R. App. P. 39(c).
Because Dill has failed to pursue these state remedies in full (or even partially, for
that matter), he has not met § 2254(b)(1)(A)’s exhaustion requirement. The district
court was correct to dismiss his habeas petition for failure to exhaust state court
remedies.
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AFFIRMED.
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