Higginbotham v. Davis
MEMORANDUM OPINION re 10 Order Dismissing Case. Signed by District Judge Sharion Aycock on 4/21/2011. (psk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
HERBERT DAVIS, et al.
This cause comes before the court on the petition of J.C. Higginbotham, inmate number
154421, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After due consideration, the court
sua sponte finds that the petition should be dismissed.
A. Factual and Procedural Background
On December 8, 2010, Higginbotham filed1 his petition challenging a 2009 state conviction
for murder. Higginbotham included information in his petition indicating he has not exhausted state
It is well-settled that a state prisoner seeking habeas corpus relief in federal court must first
exhaust available state remedies. 28 U.S.C. § 2254(b)(1) and (c)2; see also, Rose v. Lundy, 455 U.S.
The petition was originally filed in the Southern District of Mississippi and transferred
here because the conviction was the result of charges in Winston County which is located in the
Northern District of Mississippi.
28 U.S.C. §2254 (b)(1) and (c) provide:
(b)(1) 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(A) the applicant has exhausted the remedies available in the courts of the State;
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of
An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the question presented.
509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). An applicant “shall not be deemed to have exhausted
the remedies available in the courts of the State, within the meaning of [§ 2254] 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). Thus, it is a fundamental prerequisite to federal habeas relief that a petitioner exhaust all
his claims in state court prior to seeking federal collateral relief. Sterling v. Scott, 57 F.3d 451, 453
(5th Cir. 1995). To satisfy this requirement, the petitioner “must give the state courts an opportunity
to act on his claims before he presents those claims to a federal court in a habeas petition.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
The Petitioner states that he is “waiting on the trial court’s decision” on his petition for post
conviction relief. Since his state court petition is currently pending, this federal petition is
premature. See Starns v. Andrews, 524 F.3d 612, 616 (5th Cir. 2008) (the AEDPA’s one-year
limitations period is tolled for the length of time a properly filed state motion is pending). The
Petitioner has not yet completed the process of post conviction review available to him in State court.
See Miss. Code Ann. §§ 99-39-1 et seq. The Petitioner should, without haste, return to state court
and exhaust each claim he intends to present in a federal habeas petition. If he does not delay and
once he has received a ruling from the Mississippi State Supreme Court, the Petitioner may return
to this court and again pursue a federal writ of habeas.3 Since Higginbotham has not exhausted state
court remedies, this federal habeas petition is premature and will be dismissed without prejudice.
A final judgment in accordance with this opinion will be entered.
THIS the 21st day of April, 2011.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
The prohibition against successive writs will not apply where the court has not
reviewed the merits of a petition. 28 U.S.C. § 2244(b)(3)(A).
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