Humphrey v. Brewer, et al

Filing 20

MEMORANDUM OPINION re 19 Judgment. Signed by Neal B. Biggers on 4/18/11. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DI\'ISION

OMARKHAYYAM HUMPHREY
v.

PETITIONER
No.2:10CV37-B-A

JAMES BREWE& ET AL.

RESPONDENT

MEMORANDUM OPINION
This matter comes before the court on thepro se petition of Omar Khayyam Humphrey

for

awit

of habeas corpus under 28 u.s.c. $ 2254. The state has moved to dismiss the instant

petition for failure to exhaust state remedies. Humphrey has not responded to the petition, and
the deadline for response has expired. The matter is ripe for resolution. For the reasons set forth

below, the state's motion to dismiss will be granted and the instant petition dismissed without
prejudice for failure to exhaust.
Facts and Procedural Posture
Omar Khayyam Humphrey was convicted of capital murder in the Circuit Court of Tate
County, Mississippi, and on February 11, 1998, was sentenced to serve a term of life in thE
custody of the Mississippi Department of conections. Humphrey appealed his conviction and
sentence to the Mississippi Supreme court, which affirmed his conviction and sentence.

Humphrey v. state,759 So.2d 368 (Miss. 2000)(cause No. 98-KA-00372-scr)(ovemrled on
other grounds). Humphrey then filed an "Application for Leave to proceed in Trial court on

Post-conviction Relief in the Mississippi Supreme court, which was docketed as cause No.

2003-M-844. The state court dismissed this application pursuant to Mrss. coDE ANN.
and

$ 99-39-5

99-39-23. on August 23, 2004, Humphrey filed a petition for writ ofhabeas corpus in this

court challenging his conviction and sentence. ,see cause No. 2:04cy217 -p-D. on Januarv 27.
2005, the court entered a final judgment dismissing Humphrey's petition. ECF doc. 13, Cause

No. 2:04CV217-P-D.
Humphrey's current habeas corpus petition alleges new evidence in the form ofan

affidavit from

a recanting state

witness. As such, the Fifth circuit granted Humphrey permission

to proceed with a successive petition, noting that the court "may dismiss the motion if
determines that his claims do not satisry the successive standard."r ECF doc.
15, 2009, Humphrey signed an

it

6. on December

"Application to Proceed in the Trial court" which was filed in the

Mississippi Supreme court alleging this "new evidence" and raising the same allegations
currently before this Court. On April 7,2010, the state supreme court granted Humphrey's
application for permission to file a motion for posfconviction collateral reliefin the Tate County

Circuit Court. Humphrey's post-conviction motion is currently pending before the Tate Cor.rnty
Circuit Court.2 Humphrey's petition is still pending before the trial court;

'

as such, the

28 U.S.C. 52244(d)Q) allows for a successive petition to be considered

if:

(A)

the applicant shows that the claim relies on a new rule of constitutional law. made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or

(BXI)

the factual predicate for the claim could not been discovered previously throueh
the exercise ofdue diligence; and

(ii)

the facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfrnder would have found the applicant
guilty ofthe underlying offense.

2

The Mississippi Supreme Court's electronic docket, available on their website, reflects a
trial court order filed on March 14,2011 . No final order has, however, been entered in
Humphrey's state post-conviction case.

-2-

Mississippi Supreme Court has not had an opportunity to review Humphrey's allegations ofnew
evidence. Humphrey has a path through which he may exhaust his claims; should the Tate
County Circuit Court rule against him, he may pursue a direct appeal of that decision.

Exhaustion of State Remedies
This case is governed by 28 U.S.C. $ 2254, as amended, which provides in part:

(bxl) An application for a writ

ofhabeas corpus on behalfofa person in custody
pursuant to the judgrnent 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; or

(B)(t) there is an absence of available State corrective processl
or

(ii) circumstances exist that render such process ineffective to
prctect the rights of the applicant.

Additionally, g 2254(c) states:

(c) 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 ofthe State to raise, by any available procedure, the question
presented.

The case regarding these statutes provides additional clarity. "Applicants seeking federal
habeas

reliefunder $ 2254 are required to exhaust all claims in state court prior to requesting

federal collateral relief." Fisher v. Texas,169F.3d295,302 (5th
v. Johnson,157 F.3d 384,387 (5th

cir.

1999). see also ll'hitehead

Cir. 1998). To satis$r the exhaustion requirement, a federal

applicant for habeas corpus relief must present his claims to the state's highest court in a
procedurally proper manner to provide that court with an opportunity to rule upon the claims.

o'sullivan v. Boerckel,526 u.s.

83

8, I 19 s.ct. 1728 (1999); see also carter v. Este e, 677
-3-

F

.2d

427, 442-44 (5fr Cir. 1 982); D upuy v. Butler, 837 F.2d 699, 702 (5'h Cir. I 988).
Humphrey has not, however, exhausted his state remedies, although he is in the process

of doing so. Though the court may, for good cause shown, stay the case and hold it in abeyance

until the petitioner has exhausted state remedies, the petitioner has not requested such

a

stay. As

such, the court does not find the need to do so. As the petitioner has not exhausted state
remedies, the instant case

will

be dismissed without prejudice.

A final judgrnent consistent with

this holding opinion will issue today.

Additional Matters
The petitioner has also requested [14] that he be transferred to another facility with better

legal research resources so that he may better pursue his federal habeas co4pas claims. Given
this court's ruling on the case, this motion will be dismissed as moot. Finally, the state has
requested [15] an extension to respond to the instant

petition. As the court has accepted the

state's response and rendered a decision, this motion will also be dismissed as moot.

SO ORDERXD, this thel'_'h day of April, 2011.

NEAL B. BIGGLKS
SENIORU. S. DISTzuCT JUDGE

-4-