Marshall v. Thomas et al, No. 4:2020cv01101 - Document 15 (N.D. Ala. 2021)

Court Description: MEMORANDUM OPINION AND ORDER- The court ADOPTS the magistrate judge's amended report and ACCEPTS his recommendation. The court DENIES Mr. Marshall's motion for summary judgment, appointment of counsel, and an evidentiary hearing, Doc. 11 , GRANTS the respondents' motion for summary disposition, Doc. 5 , and DISMISSES the petition WITHOUT PREJUDICE to Mr. Marshall's opportunity to timely file a habeas petition in this court after he exhausts the remedies available to him in state court. Signed by Judge Anna M Manasco on 5/14/21. (MRR, )

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Marshall v. Thomas et al Doc. 15 FILED 2021 May-14 PM 01:40 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION TERRILL DUANE MARSHALL, Petitioner, v. WARDEN THOMAS, et al., Respondents. ) ) ) ) ) ) ) ) ) Case No. 4:20-cv-01101-AMM-HNJ MEMORANDUM OPINION AND ORDER The magistrate judge filed an amended report on April 27, 2021, recommending the court deny petitioner Terrill Duane Marshall’s motion for summary judgment, appointment of counsel, and an evidentiary hearing, Doc. 11, grant the respondents’ motion for summary disposition, Doc. 5, and dismiss the petition without prejudice to Mr. Marshall to file a habeas petition in this court after he exhausts the remedies available to him in state court. Doc. 13. Mr. Marshall notified the court that he agrees with the report and recommendation and that he has filed a Rule 32 petition in the Cherokee County Circuit Court. Doc. 14 (citing Case No. CC-2018-439.60). In his filing, Mr. Marshall requested that the court grant “any extension of time needed to re-file” his federal habeas petition and appoint appellate counsel upon re-filing. Id. The court DENIES Mr. Marshall’s requests. Mr. Marshall may calculate how much Dockets.Justia.com time he now has remaining on his habeas clock and timely file a federal habeas petition. If Mr. Marshall desires counsel upon filing his habeas petition, he may file an appropriate motion at that time. Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation, the court hereby ADOPTS the magistrate judge’s amended report and ACCEPTS his recommendation. Accordingly, the court DENIES Mr. Marshall’s motion for summary judgment, appointment of counsel, and an evidentiary hearing, Doc. 11, GRANTS the respondents’ motion for summary disposition, Doc. 5, and DISMISSES the petition WITHOUT PREJUDICE to Mr. Marshall’s opportunity to timely file a habeas petition in this court after he exhausts the remedies available to him in state court. The Clerk is DIRECTED to close this file. DONE and ORDERED this 14th day of May, 2021. _________________________________ ANNA M. MANASCO UNITED STATES DISTRICT JUDGE

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