Campbell v. Buscher
MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 5/29/15. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DEXTER JEROME CAMPBELL
WARDEN JERRY BUSCHER
This matter comes before the court on the motion  by the State to dismiss the instant
petition for a writ of habeas corpus for failure to exhaust state court remedies. The petitioner has
responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the
instant petition for a writ of habeas corpus will be dismissed without prejudice for failure to exhaust
state court remedies.
Facts and Procedural Posture
The petitioner is presently in the custody of the Mississippi Department of Corrections and
seeks habeas corpus relief under 28 U.S.C. § 2254. The petitioner was convicted in the Circuit Court
of Oktibbeha County, Mississippi, for possession of cocaine with the intent to distribute (Count I) and
possession of marijuana with the intent to distribute (Count II). He was sentenced to serve 60 years
without the possibility of parole in the custody of the Mississippi Department of Corrections for Count
I, and 6 years of incarceration without the possibility of parole for Count II. The Mississippi Court of
Appeals affirmed Campbell’s convictions and sentences. Campbell v. State of Mississippi, 118 So.3d
598 (Miss. Ct. App. 2012), reh’g denied March 12, 2013, cert. denied July 18, 2013 (Cause No.
The petitioner seeks a writ of habeas corpus on the following grounds:
Petitioner was incompetent to stand trial.
Ineffective assistance of counsel.
Denial of Due Process.
Exhaustion of State Court Remedies
The State has moved to dismiss the petition because the Campbell has only exhausted a part of
his due process claim in Ground Three in state court, leaving his claims in Ground One, Ground Two,
and most of Ground Three unexhausted. The petitioner has responded to the motion, acknowledging
that he has not exhausted most of his claims, but requesting that the court stay the instant case and hold
it in abeyance to permit him to do so. AA fundamental prerequisite to federal habeas relief under 28
U.S.C. § 2254 is the exhaustion of all claims in state court under ' 2254(b)(1) prior to requesting federal
collateral relief.@ Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995) (citing Rose v. Lundy, 455 U.S. 509
(1982)). A finding of exhaustion requires the petitioner to have Afairly presented the substance of his
claims to the state courts.@ Sones v. Hargett, 61 F.3d 410, 414-15 (5th Cir. 1995) (citing Vela v. Estelle,
708 F.2d 954, 958 (5th Cir. 1983)). Further, exhaustion Arequires that normally a state prisoner=s entire
federal habeas petition must be dismissed unless the prisoner=s state remedies have been exhausted as to
all claims raised in the federal petition.@ Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (citing
Rose, 455 U.S. at 518-19). The exhaustion doctrine serves the salutary purpose of Agiving the state
courts the first opportunity to review the federal constitutional issues and to correct any errors made by
the trial courts, [and thus] >serves to minimize friction between our federal and state systems of justice.=@
Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir. 1989) (quoting Rose, at 518) (citations omitted).
Campbell’s petition is a mixture of both exhausted and unexhausted claims, which the court
may not consider together:
[A] district court must dismiss such “mixed petitions,” leaving the prisoner with the
choice of returning to state court to exhaust his claims or of amending or resubmitting
the habeas petition to present only exhausted claims to the district court.
Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198 (1982). To prevent a petitioner from having to refile
his petition – and to ensure he does not become ensnared by the limitations period of 28 U.S.C. §
2244(d) – the court normally permits him to voluntarily dismiss the unexhausted claims and proceed on
the exhausted ones. In Campbell’s response to the State’s motion, however, he states that he “does not
wish to amend any part [of his petition], but desire[s] his Motion for Abeyance to be granted in whole
and not in part . . . .” In addition, he states that “[t]he entire petition should be, as a whole, dismissed
with prejudice or Motion for Abeyance . . . granted in its entirety!” In other words, Campbell has made
abundantly clear that he does not wish to amend his petition to exclude the unexhausted claims (the path
the court usually offers when faced with a mixed petition). Instead, Campbell would like the court to
consider all the claims at once, and the court will do so. Under the Supreme Court’s holding in Rose v.
Lundy, supra, the instant mixed petition for a writ of habeas corpus will be dismissed for failure to
exhaust state remedies.
Campbell’s Request to Stay the Petition and Hold It in Abeyance
A district court may hold a petition for a writ of habeas corpus in abeyance while a petitioner
exhausts his claims in state court, Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), however, a
“stay and abeyance should be available only in limited circumstances.” Id. at 1533-1535. Campbell
has not pointed to any such circumstances in this case. Neither Campbell nor his appellate attorney
presented the unexhausted claims to the Mississippi Supreme Court. To the contrary, rather than
seeking state post-conviction collateral review, Campbell chose to repeatedly file motions requesting
the production of records to prepare his state post-conviction motion. Indeed, even after the
Mississippi Supreme Court made clear that no additional records would be provided, Campbell
proceeded with a federal petition for a writ of habeas corpus, rather than file a state post-conviction
motion based on the records available to him. It appears that, to this date, Campbell still has not sought
state post-conviction collateral relief.
It also appears that, while Mr. Campbell was repeatedly filing motions to obtain records, the
deadline for him to seek federal habeas corpus relief expired. Under 28 U.S.C. § 2244(d)(1)(A),
Campbell had one year from the time his conviction became final to seek federal habeas corpus relief.
In the present case, his conviction became final on July 18, 2013, the date the Mississippi Supreme
Court denied his petition for writ of certiorari. 28 U.S.C. § 2244(d)(1)(a)(conviction becomes final
for habeas corpus purposes when direct review is complete). Thus, his deadline for seeking habeas
corpus relief expired one year later, on July 18, 2014. Hence, as to the claims Campbell has not yet
exhausted, it appears too late for him to do so now.1 For these reasons, the court holds that Campbell’s
request to stay the instant petition and hold it in abeyance will be denied.
Consequences of Choosing Not to Amend Petition
The court would like to point out to Mr. Campbell that his decision not to amend his petition to
exclude the unexhausted grounds has serious consequences. If the court’s calculation of the federal
deadline to seek habeas corpus relief is correct, that deadline expired on July 18, 2014 – which means
that, in all likelihood, any future habeas corpus petition would be untimely filed. Thus, Campbell’s
refusal to amend his present petition for a writ of habeas corpus will probably result in his inability to
seek habeas corpus relief regarding these convictions on any ground at all, whether he has exhausted
that ground or not.
The court has not made a decision regarding the issue of the petition’s timeliness, as that issue is not
before the court in the instant motion – and can involve complex decisions regarding equitable tolling,
actual innocence, and other matters. The court mentions timeliness only to note the likely futility of
staying the case so that Mr. Campbell may attempt to exhaust state court remedies.
For the reasons set forth above, the petitioner’s request to stay the instant case and hold it in
abeyance so that he may exhaust state remedies as to several claims will be denied. In addition, the
instant mixed petition for a writ of habeas corpus will be dismissed for failure to exhaust state
SO ORDERED, this, the 29th day of May, 2015.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE
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