MEMORANDUM OPINION

L. SCOTT COOGLER, District Judge.

This is a habeas corpus case filed pursuant to 28 U.S.C. § 2254 by Petitioner Louis Ellis, Jr., an Alabama state prisoner acting pro se. (Doc.1 1). Upon careful consideration of the claims, the court finds the petition is due to be denied.

I.

Ellis was convicted following a jury trial of second degree robbery. (Doc. 4-7 at 17 (Ex. B2 at 282)). He was sentenced as an habitual offender to twenty-five years custody. (Id. at 21-23). Ellis appealed his conviction to the Alabama Court of Criminal Appeals, asserting that (1) the trial court violated his right to a speedy trial and (2) the evidence adduced at trial was insufficient to sustain his conviction. (Doc. 4-8 at 7 (Ex. E at 4)). The Court of Criminal Appeals rejected his claims, affirming his conviction and sentence. (Doc. 4-10 (Ex. E)). The Alabama Supreme Court denied his petition for a writ of certiorari. (Doc. 4-1 at 2 (Ex. at 2)).

Ellis filed a post conviction petition pursuant to Alabama Rule of Criminal Procedure 32. (Doc. 4-13 (Ex. H)). He appealed the denial of that petition to the Court of Criminal Appeals. The appeal was dismissed because Ellis failed to pay the docket fee. (Doc. 4-14 (Ex. I)). Ellis then filed a petition for a writ of mandamus with the Alabama Supreme Court. (Doc. 4-15 (Ex. J)). It was struck for "fail[ing] to state a claim for relief that is available by way of a mandamus petition or for relief that is available from the Alabama Supreme Court." (Id.)

Ellis filed a second Rule 32 petition. Therein, he asserted (1) that he is entitled to proceed because the Court of Criminal Appeals improperly dismissed his appeal and (2) his trial counsel was ineffective in failing to object to the trial court's failure to instruct the jury regarding the applicable mental state for a conviction. (Doc. 4-17 at 13-16 (Ex. L 13-16)). The trial court summarily denied and dismissed the petition. The Court of Criminal Appeals affirmed the denial of relief in a memorandum opinion. (Doc. 4-20 (Ex. O)). Ellis sought no further review in the state courts. (See Doc. 4 at 4-5; Doc. 6 at 2 (noting the petitioner's "agree[ment] with the respondent's chronology of the case")).

Ellis filed the present federal petition asserting the following claims:

(Doc. 1 at 5 & 14-17). This court issued an order requiring the respondent to appear and show cause why the requested relief should not be granted. (Doc. 3). The respondent filed an answer asserting that the claims have not been exhausted and are procedurally barred from review or without merit. (Doc. 4). Ellis was afforded an opportunity to respond. (Doc. 5). He filed a reply wherein he agrees with the respondent's "chronology of the case" and the fact that all of his claims except for his challenge to the sufficiency of the evidence were not exhausted in state court. (Doc. 6 at 2-3). As to the sufficiency of the evidence claim, he asserts he has met his burden to warrant further review.3 (Id. at 3).

II.

To place Ellis's claims in context, it is necessary and appropriate to recite the factual findings of the Court of Criminal Appeals:

(Doc. 4-10 at 1-3 (Ex. E at 1-3)).

III.

A state prisoner is generally ineligible for federal habeas unless he has first exhausted his claims by way of remedies available in the courts of the State of conviction. See 28 U.S.C. § 2254(b)(1)(A); Kelley v. Secretary for Dept. of Corr., 377 F.3d 1317, 1343-44 (11th Cir. 2004). Thus, a state prisoner must first present any federal constitutional or statutory claim through one complete round of the State's trial and appellate review process, either on direct appeal or in State post-conviction proceedings. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Mauk v. Lanier, 484 F.3d 1352, 1357 (11th Cir. 2007). Where a claim has not been exhausted in the State courts and the time in which to present the claim there has expired, the claim is deemed procedurally defaulted and review in the federal courts is generally precluded. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005). A procedural default may be overcome by a showing of either (1) (a) adequate cause for having defaulted the constitutional claim in state court and (b) resulting prejudice or (2) actual innocence. See Dretke v. Haley, 541 U.S. 386, 388 (2004). Under § 2254(b)(3), a district court is now required to address the issue of exhaustion unless the State expressly waives the defense. McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005); Dill v. Holt, 371 F.3d 1301, 1302 n.1 (11th Cir. 2004)).

A.

As to Ellis's first claim, that the trial court violated his right to a speedy trial, it was presented to the Court of Criminal Appeals during his direct appeal. (Doc. 1 at 5 (Claim 1)).4 After weighing the relevant considerations under Barker v. Wingo, 470 U.S. 514 (1972), the court held that the trial court did not abuse its discretion in denying Ellis's motion to dismiss on speedy trial grounds. (Doc. 4-10 at 10 (Ex. E at 10)). Although Ellis sought certiorari review from the Alabama Supreme Court, he failed to raise this claim. (See Doc. 4-12 (Ex. G)). Accordingly, it has not been properly exhausted in the Alabama state courts. See O'Sullivan, 526 U.S. at 845-47. This claim would be precluded from further review in the state courts because it would have to be advanced in a successive post-conviction petition, which is prohibited under the Alabama Rules of Criminal Procedure. (See ALA. R. CRIM. P. 32.2(b)). It would also be prohibited because it is untimely. (See ALA. R. CRIM. P. 32.2(c)). Thus, it is precluded from review by this court.5

B.

Ellis's next claim is that the evidence was insufficient to sustain his conviction because the theft had already occurred and was completed before any force was used against Hausman. (Doc. 1 at 5, 15 (Claim 2)).6 This claim was raised on direct appeal. The Court of Criminal Appeals stated that under the facts and law, "the jury could have reasonably concluded that, in the course of committing a theft, Ellis and/or his accomplice, Hightower, used force against Hausman to retain possession of the money." (Doc. 4-10 at 12-13 (Ex. E. at 12-13)). It further concluded that "the evidence was sufficient to support a conviction of second-degree robbery." (Id.)

Ellis is not entitled to any substantive relief on his second claim unless he demonstrates that the decision of the Court of Criminal Appeals was either "contrary to, or involved an unreasonable application of, clearly established Federal law" or it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2). In evaluating this claim, the court must note that the factual findings of the State court are presumed to be correct and the petitioner must rebut this presumption with "clear and convincing evidence." 28 U.S. C. § 2254(e)(1).

Having carefully reviewed the decision of the Court of Criminal Appeals, this court finds that the decision is correct. Ellis has not alleged any facts or law that demonstrates that the decision is erroneous. He is entitled to no further review or relief.

C.

Ellis's remaining claims concern counsel's purported ineffectiveness (doc. 1 at 5, 16-17 (Claims 3 & 5)),7 the trial court's denial of his in forma pauperis status on appeal (id. at 16 (Claim 4)),8 and the trial court's summary denial of his post-conviction petition (id. Claim 6)).9 Each claim, however, is barred from review for various reasons, which will be discussed below.

The claims regarding counsel's ineffectiveness and Ellis's appeal of the denial of his first Rule 32 petition were raised in the second Rule 32 petition, which the trial court summarily denied. On appeal of the denial of relief by the second Rule 32 court, Ellis asserted that his trial counsel was ineffective during the trial in that he "fail[ed] to request proper jury instructions" and that the Rule 32 judge erred in failing to conduct an evidentiary hearing and grant him the requested relief. (Doc. 4-20 at 2-3 (Ex. O) at 2-3)). The Court of Criminal Appeals made three significant determinations in its decision. First, it found that because Ellis did not raise his "out-of-time" appeal claim concerning his in forma pauperis status, it was deemed "abandoned." (Id. at 3, n. 3). Second, it determined that the ineffective assistance of counsel claims were untimely and therefore properly dismissed. (Id. at 4). Third, it determined that the trial court did not err in summarily dismissing his petition without an evidentiary hearing because the petition was precluded as being time barred. (Id.) Ellis did not seek any further review of these claims in state court. (See Doc. 1 at 12-13; Doc. 4 at 4-5; Doc. 4-16 (Ex. K); Doc. 6 at 2-3).

This court finds that each of the foregoing claims are unexhausted because they were not properly raised in the state courts for the reasons articulated by the Court of Criminal Appeals. Additionally, the claims are further unexhausted because they were not presented to the Alabama Supreme Court. See O'Sullivan, 526 U.S. at 845-47. Because these claims are time-barred, it would be futile to require further exhaustion of them. Thus, they are procedurally defaulted for purposed of federal habeas corpus review.10

IV.

Premised on the foregoing, Ellis's petition for a writ of habeas corpus is due to be denied and dismissed with prejudice. Further, the court concludes that the petition does not present issues that are debatable among jurists of reason, so a certificate of appealability is also due to be denied. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a), RULES GOVERNING § 2254 PROCEEDINGS. A separate Final Judgment will be entered.