REPORT AND RECOMMENDATION

CHARLES H. WEIGLE, Magistrate Judge.

Before the Court is a motion to dismiss Cheikh Howard Gwingue's petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. (Doc. 12). Because Petitioner has not yet exhausted his State court remedies, it is RECOMMENDED that the motion to dismiss be GRANTED, and that this action be dismissed without prejudice.

BACKGROUND

On October 21, 2016, a Houston County jury found Petitioner guilty of malice murder, felony murder, aggravated assault, and possession of a firearm during the commissioner of a crime. (Doc. 13-2, pp. 1-2). As noted in the Houston County Superior Court's order of judgment, Petitioner's felony murder and aggravated assault convictions merged with his murder conviction. (Doc. 13-3, p. 3). On the same day, Petitioner received a sentence of incarceration for a term of life with the possibility of parole. (Doc. 13-3, pp. 1-2). Subsequently, on November 1, 2016, Petitioner, through counsel, filed a motion for new trial. (Doc. 13-4, pp. 1-2). The Houston County Superior Court has yet to rule upon this motion, and Petitioner has filed no direct appeal. (Doc. 12-1, p. 2) (Resp.'s Brief). See also (Doc. 1, pp. 1-2).

EXHAUSTION

Title 28 U.S.C. § 2254 provides that an "application for 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). This provision, as interpreted, requires Section 2254 petitioners to exhaust their claims by fairly presenting them to the State courts through one complete round of review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). See also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) ("Boerckel applies to the state collateral review process as well as the direct appeal process").

Petitioner has commenced neither a direct appeal nor state habeas corpus proceedings. Plainly, Petitioner has not fairly presented his claims to the State courts through one complete round of review. Additionally, the Houston County Superior Court's delay in ruling upon Petitioner's November 2016 motion for new trial does not amount to "an absence of available State corrective process" under 28 U.S.C. § 2254(b)(1)(B)(i). See, e.g., Cail v. Smith, 2006 WL 566106 at *3 (S.D. Ga. Mar. 6, 2006) ("this Court recently dismissed an unexhausted federal petition despite the petitioner's complaints regarding a two-year delay").

Accordingly, because Petitioner failed to exhaust his State court remedies prior to commencing this Section 2254 action, it is RECOMMENDED that Respondent's motion to dismiss be GRANTED, and that this action be dismissed without prejudice. Furthermore, pursuant to the requirements of Rule 11 of the Rules Governing Section 2254 Cases, it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is also RECOMMENDED that the Court deny a certificate of appealability in its final order.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."

SO RECOMMENDED.