Moore v. State of Mississippi et al

Filing 5

MEMORANDUM OPINION re 4 Final Judgment Dismissing petition. Signed by District Judge Sharion Aycock on 7/9/13. (mhg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
MISTY MOORE

PETITIONER

v.

CIVIL ACTION NO.: 1:13CV119-SA-DAS

STATE OF MISSISSIPPI, et al.

RESPONDENTS

MEMORANDUM OPINION DISMISSING PETITION
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner
Misty Moore, a Mississippi inmate, has filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254, in which she seeks to challenge her State court conviction and sentence for
the crime of kidnapping. Having considered the instant petition and the applicable law, the
Court dismisses the petition for the following reasons.
Background
Moore maintains that on May 20, 2011, she pled guilty to the crime of kidnapping in the
Circuit Court of Lowndes County in Cause No. 2010-0521-CRI and was sentenced to a term of
twenty-five years in the custody of the Mississippi Department of Corrections. She maintains
that she was also facing a charge of statutory rape, which was retired to the files upon her plea.
In the instant petition, Moore complains that she has been given a mandatory sentence where
none is required by the charge; that she received ineffective assistance of counsel; and that her
sentence is unduly harsh. Moore states that she did not seek appellate or post-conviction relief in
the State courts prior to filing her federal habeas petition, which was filed on or about June 19,
2013.

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Exhaustion
A prisoner seeking federal habeas relief must first exhaust her 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 her claims prior to seeking federal habeas relief, her 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.”).
Moore concedes that she has not sought any State court review of her conviction and
sentence, and she has failed to exhaust her available State remedies through the Mississippi PostConviction Collateral Relief Act.1 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.”). Since Moore clearly concedes
that she has not pursued her claims with the State court, this petition will be dismissed without
prejudice for Moore’s failure to exhaust her available State remedies. A final judgment

1

The Court may raise a petitioner’s failure to exhaust sua sponte. Shute v. State, 117
F.3d 233, 237 (5th Cir. 1997).
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consistent with this memorandum opinion will issue today.
SO ORDERED this the 9th day of July, 2013.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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