Curry v. MDOC et al

Filing 37

MEMORANDUM OPINION re 36 Final Judgment. Signed by District Judge Sharion Aycock on 11/13/13. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JAMES CURRY, JR.
vs.

PETITIONER
CIVIL ACTION NO.: 1:13cv20-SA-JMV

MISSISSIPPI DEPARTMENT OF CORRECTIONS, et al.

RESPONDENTS

MEMORANDUM OPINION AND ORDER
Petitioner, James Curry, Jr., an inmate currently confined at the East Mississippi
Correctional Facility, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, in which he seeks to challenge his State court conviction and sentence for the crime of
possession of more than two grams of cocaine.1 Respondents filed a motion to dismiss the
petition, alleging that Petitioner failed to exhaust his available State court remedies prior to filing
the instant action. Petitioner responded to the motion to dismiss, and Respondents filed a reply
thereto. Having considered the parties’ filings and the applicable law, the Court grants
Respondents’ motion and dismisses the petition for the following reasons.
Background
On October 31, 2012, Petitioner pleaded guilty to the possession of more than two grams
of cocaine in the Circuit Court of Monroe County, Mississippi. (See Resp’ts Mot. to Dismiss,

1

The Court notes that the initial petition filed in this action challenged Petitioner’s
sentences from both the Lee and Monroe County Circuit Courts. (See ECF no. 1). The Court
subsequently ordered Petitioner to identify the judgment of only one State circuit court in this
action. Petitioner subsequently advised the Court that he wished to challenge his Monroe
County Circuit Court conviction and sentence in the instant action, and he filed a separate action
challenging his Lee County Circuit Court conviction and sentence. See Curry v. Pounds, Cause
No. 1:13cv149-A-S.
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Ex. A). Pursuant to the plea, Petitioner was sentenced to serve a term of sixteen years in the
custody of the Mississippi Department of Corrections, with eight years suspended and five years
of post-release supervision imposed. (Id.). The sentence was ordered to run concurrently with
Petitioner’s sentence in the Circuit Court of Lee County.2 (Id.).
Petitioner filed the instant § 2254 petition on or about February 4, 2013, asserting the
following two ineffective assistance of counsel claims: (1) counsel “railroaded” Petitioner; and
(2) counsel failed to have Petitioner brought to trial in a timely fashion. (See ECF no. 1).
Petitioner filed the instant petition without first seeking review of his claims in State court.
Exhaustion
A prisoner seeking federal habeas relief must first exhaust his available state court
remedies. See 28 U.S.C. § 2254(b) and (c); O’Sullivan v. Boerckel, 526 U.S. 838, 840 (1999).
The exhaustion requirement is satisfied when the habeas claim has been presented to the highest
state court in a procedurally proper manner. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.
1997). If a prisoner fails to exhaust his claims prior to seeking federal habeas relief, his federal
habeas petition must ordinarily be dismissed. See Coleman v. Thompson, 501 U.S. 722, 731
(1991); see also Duncan v. Walker, 533 U.S. 157, 178-79 (2001) (“The exhaustion requirement
of § 2254(b) ensures that the state courts have the opportunity fully to consider federal-law
challenges to a state custodial judgment before the lower federal courts may entertain a collateral
attack upon that judgment.”).
There is no direct appeal from a guilty plea in Mississippi. See Miss. Code Ann. § 99-35-

2

Petitioner was sentenced on October 31, 2012, to serve a term of eight years in the
Mississippi Department of Corrections in Lee County Circuit Court Cause No. CR08-348. See,
Curry v. Pounds, Cause No. 1:13cv149-A-S (ECF no. 9, p. 4).
2

101. However, Mississippi’s Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. §
99-39-1, et seq., provides Petitioner an available avenue through which to challenge his plea and
sentence. Respondents maintain that they have contacted the Monroe County Circuit Court
Clerk’s Office, and that Petitioner has not filed any post-conviction motions in that court. (See
Resp’ts Mot. to Dismiss, 3).3
The Court finds that Petitioner has failed to exhaust his available State remedies, as he
has the option to seek post-conviction relief in the circuit court and appeal any adverse decision
to the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-5(1) (providing avenue for
inmate to bring a challenge “[t]hat the conviction or the sentence was imposed in violation of the
Constitution of the United States or the Constitution or laws of Mississippi”); see also § 99-395(2) (“A motion for relief under this chapter shall be made . . . [I]n case of a guilty plea, within
three (3) years after the entry of the judgment of conviction.”). Accordingly, Petitioner still has
time within the State’s three-year statute of limitations to return to State court.
In some “limited circumstances,” courts may hold a habeas petition in abeyance while the
petitioner exhausts his state court remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005). A stay
is not appropriate, however, unless “good cause” is shown for the failure to exhaust, the
“unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Id. at 278. Petitioner does not request a stay

3

Attached as exhibits to Respondents’ motion are two letters written to the Monroe
County Clerk’s Office by Petitioner. (See Resp’ts Mot. to Dismiss, Exs. C and D). The first
letter, written in February 2013, requests copies of Petitioner’s detainer paperwork, while the
second letter, written in October 2013, requests that Petitioner’s pre-trial jail time be submitted
to the records department of the Mississippi Department of Corrections. (Id.). Neither of these
letters is considered a motion for post-conviction relief.
3

and abeyance from this Court, but he does argue in his traverse that he was unaware of the
procedures necessary to properly present his case to the State courts for review.4 The Court finds
that Petitioner’s ignorance of the law is insufficient to establish good cause for his failure to first
exhaust his State court remedies. See Johnson v. Mississippi, No. 2:12cv95-KS-MTP, 2013 WL
752499 at *4 (S.D. Miss. Jan. 31, 2013) (citation omitted). Accordingly, a stay and abeyance is
not warranted in this case.
For the foregoing reasons, Respondents’ motion to dismiss the instant petition [ECF no.
32] is GRANTED, and the instant petition is DISMISSED WITHOUT PREJUDICE. A
separate final judgment will issue today.
SO ORDERED this the 13th November, 2013.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

4

Petitioner also appears to make challenges to the conditions of his confinement in his
traverse. Such claims are not cognizable on federal habeas review, and Petitioner is advised that
he must file a civil rights action pursuant to 42 U.S.C. § 1983 if he wishes to pursue claims
relating to the conditions of his confinement. See Carson v. Johnson, 112 F.3d 818, 820 (5th Cir.
1997).
4