[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               NOV 24, 2006
                               No. 06-11410                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 06-00050-CV-CAR-5

WILLIAM R. JACKSON,



                                                            Petitioner-Appellant,

                                    versus

VICTOR WALKER,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                             (November 24, 2006)

Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Georgia state prisoner William R. Jackson, proceeding pro se, appeals the
denial of his petition for federal habeas relief, filed pursuant to 28 U.S.C. § 2241,

in which he sought review of the decision by the state parole board to revoke his

parole for a violation of its conditions. The district court dismissed Jackson’s

application for a writ of habeas corpus without prejudice, noting that Jackson failed

to exhaust his state court remedies as his state habeas petition remains pending.

The court noted that Jackson had filed a state habeas petition in 2004, on which he

was given an evidentiary hearing, but was still awaiting disposition. We granted a

certificate of appealability to determine “[w]hether the district court improperly

dismissed appellant’s 28 U.S.C. § 2241 habeas corpus petition for failure to

exhaust state remedies, where the state court has allowed over two years to elapse

without issuing a ruling on appellant’s state habeas petition?”

      On appeal, Jackson argues that the district court erroneously dismissed his

habeas petition, for failure to exhaust all state remedies, because he filed a state

habeas petition in the proper venue and has waited over two years for a response.

Jackson claims that the state court’s “inexcusable delay” has prejudiced him by not

allowing him to advance his petition.

      When reviewing the denial of a habeas petition by the district court, we

review questions of law and mixed questions of law and fact de novo. Nyland v.

Moore, 

, 1266 (11th Cir. 2000). Habeas law requires that an



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applicant exhaust any available state procedure before filing a petition in federal

court. 28 U.S.C. § 2254(c). A state prisoner seeking post conviction relief under

§ 2241 is subject to the additional restrictions of §2254, such as the exhaustion of

state remedies. Medberry v. Crosby, 

, 1062 (11th Cir. 2003).

Therefore, whether a petitioner filing under § 2241 has exhausted all available state

remedies is subject to de novo review. Fox v. Kelso, 

, 568 (11th Cir.

1990).

         Before a state prisoner may file a federal habeas petition, he must exhaust

his state remedies by petitioning the highest court in the state in which he is being

held “when such review is part of the ordinary appellate review procedure” in that

jurisdiction. Pope v. Rich, 

, 853 (11th Cir. 2004). Because ordinary

appellate procedure in Georgia authorizes habeas review in the Georgia Supreme

Court, a petitioner must avail himself of that procedure before we will deem all

state remedies to be exhausted. 

(citing O.C.G.A. § 9-14-52).

         Further, “[a]n applicant shall not be deemed to have exhausted the remedies

available in the courts of the State . . . if he has the right under the law of the State

to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c)

(emphasis added). We have noted that a district court should only “in rare instances

. . . deviate from the exhaustion requirement.” Hughes v. Stafford, 

,



                                             3
1581 (11th Cir. 1986). Even in cases where the claims of defects in the state

correctional system presented by a prisoner may “rise to a constitutional level

involving the denial of due process,” our precedent has expressed a desire that such

claims be first presented in a state forum. Reynolds v. Wainright, 

,

1027 (5th Cir. 1972).

       Upon a review of Georgia civil procedure, it appears that Jackson has an

available state procedure in which to raise the question he presents in his habeas

petition. Georgia law provides that, “[a]ll official duties should be faithfully

performed; and whenever, from any cause, a defect of legal justice would ensue

from a failure to perform . . . the writ of mandamus may issue to compel a due

performance, if there is no other specific legal remedy for the legal rights.”

O.C.G.A. § 9-6-20. A writ of mandamus “is an extraordinary remedy that is only

available if no other adequate legal remedy exists,” Mayo v. Head, 

,

109 (Ga. 2006), however, the Georgia Supreme Court has considered mandamus

proper to compel a superior court judge to schedule a hearing to consider a

prisoner’s state habeas motion. Rickett v. State, 

, 33-34 (Ga. 2003).

       Superior court judges have the duty to enter a ruling, and notify the parties

of that ruling, within 90 days, at the latest, from hearing a motion of any nature.1


       1
        Judges in counties containing populations of 100,000 or more inhabitants have 90 days to
rule on motions. O.C.G.A. § 15-6-21(b). In counties in which the population is less than 100,000,

                                               4
See O.C.G.A. § 15-6-21. Where a judge has not issued a ruling within the period

authorized by statute, “[t]he only remedies for violation of the statute are

mandamus and impeachment of the judge.” Brooks v. State, 

, 352

(Ga. 1995).

       Here, Jackson filed his state petition for habeas relief and appeared at an

evidentiary hearing in 2004. The statutory period in which the judge must rule on

his motion has clearly come and passed, which, under Georgia law, would allow

Jackson the opportunity to seek a writ of mandamus. Thus, Jackson has not

exhausted all state remedies because Georgia law allows him to seek a writ of

mandamus, compelling the superior court to rule on his state habeas petition.

Accordingly, we affirm.

       AFFIRMED.




the judge has 30 days to rule on the motion. O.C.G.A. § 15-6-21(a).

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