Smith v. Epps et al
Filing
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MEMORANDUM OPINION re 6 Order Dismissing Case. Signed by Senior Judge Glen H. Davidson on 7/21/2014. (dlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MARVIN SMITH,
PETITIONER
v.
CIVIL ACTION NO.: 1:13cv75-GHD-SAA
C. EPPS, et aI.,
RESPONDENTS
MEMORANDUM OPINION AND ORDER
Petitioner, Marvin Smith, an inmate currently confined at the Mississippi State
Penitentiary, has filed a pro se petition for federal habeas relief pursuant to 28 U.S.C. § 2254.
Respondents have filed an answer to the instant petition, and the time has expired for Smith to
submit a reply. Having considered the parties' filings and the applicable law, the Court finds
Smith's petition should be dismissed.
Background and Procedural History
On April 21, 2003, Smith pleaded guilty to grand larceny in the Circuit Court of
Oktibbeha County, Mississippi, and was given a five-year sentence. (Answer, Ex. A). The
sentencing order recommended Smith for the Regimented Inmate Discipline Program ("RID")
and ordered that, upon successful completion of the RID program, the court would retain
jurisdiction until re-sentencing. (ld.). On January 30,2004, Smith was re-sentenced. In the new
sentencing order, the circuit court noted that, while awaiting re-sentencing, Smith committed a
new crime. (ld., Ex. B). The circuit court sentenced Smith to serve the full five year sentence in
the custody of the Mississippi Department of Corrections ("MDOC"). (ld.).
According to Smith's MDOC timesheet, he was released on parole on February 25, 2005,
but was returned to custody on April 6, 2006. (Id., Ex. C). On October 19, 2006, Smith pleaded
guilty to burglary of a dwelling in the Circuit Court of Oktibbeha County, Mississippi, a crime
which was committed while Smith was on parole, and he was sentenced to serve a term of fifteen
years with five years of post-release supervision. (Id., Ex. D). This order does not specify
whether the sentence was to run consecutively or concurrently with Smith's sentence for grand
larceny. On July 28, 2009, in the Circuit Court of Oktibbeha County, Smith pleaded guilty to a
charge of possession of contraband in jail and was sentenced to serve a term of five years, with
five years of post-released supervision, to be served consecutively with his previous sentences.
(Id., Ex. E). Smith is currently incarcerated pursuant to these sentences.
In his federal habeas petition, Smith does not list any grounds for relief. (See ECF No.1).
He simply asks the Court to correct his sentence in his prayer for relief. (See id. at 14).
However, attached to his petition is a letter, in which he complains that MDOC has wrongfully
interpreted his sentences to run consecutively, for a total of twenty-five years. (See id. at 15-16),
He argues that, when he pleaded guilty, he was under the impression that his sentences for grand
larceny and residential burglary would run concurrently, and that he should, therefore, be serving
a total of twenty years.
In November 2011, Smith filed a complaint with the MDOC Administrative Remedy
Program ("ARP") asserting that he should be parole eligible. (Id., Ex. F). The ARP response to
that complaint informed Smith, inter alia, that his fifteen year sentence for residential burglary,
"should have ran consecutive to your original sentence. It now does." (Id.). Smith signed for
this response on February 13,2012, but did not file his "Second Step" in the ARP process until
March 22,2012, well beyond the window in which to file his second-step response. (See ;d., Ex.
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G).
On June 22, 2012, Smith filed a letter in the Oktibbeha County Circuit Court asking that
his 2006 sentencing order for residential burglary be rewritten to make the sentence run
concurrently with his earlier grand larceny sentence. (fd., Ex. H). On October 31, 2012, the
circuit court, treating the letter as a post-conviction motion, entered an order holding, in pertinent
part, that "the petition is not well taken and that no hearing is necessary. The Court finds that it
lacks the authority to amend any aspect of Petitioner's sentence at this time." (/d., Ex. I).
Smith then filed his federal habeas petition, arguing in an attached letter that his
sentences for residential burglary and grand larceny should run concurrently.
Discussion
A petitioner 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 substance ofthe 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).
Smith has not appealed the denial of his post-conviction motion to the Mississippi
Supreme Court. The time within which Smith could properly seek such an appeal has expired.
See Miss. R.App. P. 4 (requiring notice of appeal to be filed within thirty days after the entry of
judgment or order appealed from). Therefore, Smith has procedurally defaulted his opportunity
to present his claim to the Mississippi Supreme Court, and this Court is precluded from
reviewing the claim on its merits. Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999)
(citations omitted) (holding that a procedural default occurs where "the petitioner fails to exhaust
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all available state remedies, and the state court to which he would be required to petition would
now find the claims procedurally barred"); see also Finley v. Johnson, 243 F.3d 215, 220 (5th
Cir. 2001) ("If a petitioner fails to exhaust state remedies, but the court to which he would be
required to return to meet the exhaustion requirement would now find the claim procedurally
barred, then there has been a procedural default for purposes of federal habeas corpus relief.").
By failing to properly file appeals and present his claim to the Mississippi Supreme
Court, Smith has waived State court review of the claim on the merits. Accordingly, he has
defaulted his federal habeas claim, and this Court may not review the merits of it unlesss "he can
demonstrate cause for the default[] and actual prejudice" or "that 'failure to consider the claim[]
will result in a fundamental miscarriage ofjustice.'" Morris v. Dretke, 413 F.3d 484,491 (5th
Cir. 2005) (citations omitted). Smith makes no argument in an attempt to demonstrate "cause"
for the default, and the Court finds that no legally sufficient cause for the default exists. See
Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (finding pro se status is not an objective
external factor constituting "cause" for failure to raise issues). Because Smith fails to
demonstrate cause, the Court need not consider the issue of prejudice. Id. at 118.
The "fundamental miscarriage ofjustice" exception, which is limited to cases of actual
innocence, is not applicable in the instance case, as Smith pleaded guilty to the crimes of
conviction. See Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (noting that the
exception is limited to cases "where the petitioner shows, as a factual matter, that he did not
commit the crime of conviction"). The Court otherwise notes that because Smith's crime of
residential burglary was committed while he was on parole for his grand larceny conviction,
Smith's 2006 sentence was required by statute to run consecutively to his previous sentence. See
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Miss. Code Ann. § 99-19-21(2).
Therefore, the Court is procedurally barred from granting the relief Smith requests.
Certificate of Appealability
Rule 11 (a) of the Rules Governing § 2254 Cases in the United States District Courts
requires this Court to issue or deny a certificate of appealability ("COA") upon entry of a final
order adverse to the petitioner. A petitioner must obtain a certificate of appealability ("COA")
before appealing a district court's decision denying federal habeas relief. 28 U.S.C. § 2253(c)(I).
A COA will not issue absent "a substantial showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). To obtain a COA on a claim that has been rejected on procedural grounds,
as is the case here, a petitioner must demonstrate "that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling."
Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this standard, the Court concludes that a
COA should be denied.
Conclusion
Smith failed to properly submit his claim to the State's highest court, and the time for
seeking review in State court has expired. Therefore, Smith's claim is procedurally barred and
his petition is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. A
final judgment consistent with this memo,pmdum opinion will issue today.
SO ORDERED this the 2/>;ay of July, 2014.
SENIOR U.S. DISTRICT JUDGE
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