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JEFFERY JASON WINGO, Petitioner, v. LANE COUNTY SHERIFF JAN CLEMENTS, Respondent.

FINDINGS AND RECOMMENDATION

DENNIS HUBEL, Magistrate Judge

Petitioner, an inmate at the Lane County Sheriff's Forest Work Camp, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner seeks to challenge the constitutionality of his June 29, 2003, conviction for stalking. Respondent moves to dismiss on the basis that petitioner has failed to exhaust his available state remedies. Petitioner has filed no opposition.

DISCUSSION

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).

Petitioner was convicted on June 29, 2003, pursuant to an Alford plea. Respondent states that there is no appeal pending and no record that petitioner has filed a state post-conviction proceeding. Although petitioner alleges in his amended habeas corpus petition that he filed a state post-conviction proceeding, he does not allege that he has exhausted that remedy. Further, there are no facts alleged to support a finding that "there is an absence of available state corrective process" or that "circumstances exist that render such process ineffective". 28 U.S.C. § 2254(b)(1)(B)(i) (ii). Accordingly, I conclude that petitioner has failed to exhaust his available state remedies.

CONCLUSION

Based on the foregoing, respondent's motion to dismiss (#9) should be granted, petitioner's amended habeas petition (#5) should be denied, and judgment should be entered, without prejudice.

SCHEDULING ORDER

The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due June 15, 2004. If no objections are filed, the Findings and Recommendations will go under advisement on that date.

If objections are filed, a response to the objections is due June 29, 2004, and the review of the Findings and Recommendation will go under advisement on that date.

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WINGO v. LANE COUNTY SHERIFF JAN CLEMENTS
(Jun 1, 2004)