Wagner v. Smith

Filing 14

MEMORANDUM OPINION re 13 Final Judgment on Motion to Dismiss, Order on Motion to Amend, Order on Motion for Extension of Time. Signed by Michael P. Mills on 8/29/13. (mhg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
LYLE M. WAGNER,

PETITIONER

v.

No. 3:13CV112-M-V

ARTHUR SMITH, ET AL.

RESPONDENTS
MEMORANDUM OPINION

This matter comes before the court on the pro se petition of Lyle M. Wagner for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition, and Lyle
has responded. The matter is ripe for resolution. For the reasons set forth below, the State’s
motion will be granted and the petition dismissed for failure to exhaust state remedies.
Facts and Procedural Posture
The Petitioner, Lyle Wagner, is in the custody of the Mississippi Department of
Corrections and is currently housed at the Mississippi State Penitentiary in Parchman,
Mississippi. Wagner pled guilty to one count of conspiracy to manufacture methamphetamine in
the Circuit Court of Desoto County, Mississippi. On January 4, 2013, he was sentenced to serve
six years in the custody of the Mississippi Department of Corrections (“MDOC”), with five years
post-release supervision. See ECF, Doc. 6, p. 7-10. According to the records of the Mississippi
Supreme Court Clerk’s office and the office of the Desoto County Circuit Clerk, Wagner has not
filed a motion for post-conviction relief.
In his current habeas corpus petition, filed on April 26, 2013, Wagner raises the
following issues pro se (as summarized by the State):
Ground One. Petitioner’s arrest was unjust and illegal.
Ground Two. Violation of Petitioner’s right to a speedy trial.

Ground Three. Petitioner did not receive a warrant or an arraignment hearing.
Ground Four. Petitioner pleaded guiltywithout knowing of testimony of codefendants.
Ground Five. Petitioner disputes the prior convictions presented by the state at
sentencing.
Wagner requests that this court vacate his conviction and release him from incarceration – or to
grant him a sentence reduction hearing.
Discussion
This case is governed by 28 U.S.C. § 2254, which provides in part:
(b)(1) An application for a writ of habeas corpus o n behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears that
–
(A) the applicant has exhausted the state remedies available in the courts
of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the appellant.
...
(c) An applicant shall not be deemed to have exhausted th e remedies available in
the courts of the State, within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure, the question presented.
28 U.S.C. § 2254(b)(1) and (c).
In inmate seeking federal habeas corpus relief in must exhaust “all claims in state court
under § 2254(b) prior to requesting federal collateral relief.” Sterling v. Scott, 26 F.3d 29, 30 (5th
Cir. 1994). To satisfy the exhaustion requirement, the applicant must present his claims to the
state’s highest court and provide state courts an fair opportunity to pass upon the claims.
O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 67 USLW 3682 (1999); see also Carter v.

Estelle, 677 F.2d 427, 442-44 (5th Cir. 1982), modified on other grounds, 691 F.2d 777 (5th Cir.
1982), cert. denied, 460 U.S. 1056 (1983); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1989).
Wagner has not, however, exhausted his claims in state court. Wagner has available state
remedies through which to exhaust his claims, as he may file a motion for post-conviction relief
in the state trial court within three years of the entry of the judgement of conviction – and appeal
any adverse decision to the Mississippi Supreme Court. MISS. CODE ANN. § 99-39-5 and §
99-39-7. Wagner will have exhausted his state remedies only after presenting his claims to the
state’s highest court in a procedurally proper manner. He has not yet done so.
As Wagner has not exhausted his remedies in state court, the instant petition will be
dismissed without prejudice. See 28 U.S.C. § 2254(b)(1) and (c), supra; O’Sullivan v. Boerckel,
526 U.S. 838, 119 S.Ct. 1728, 67 USLW 3682 (1999); Rose v. Lundy, 455 U.S. 509 (1982);
Duckworth v. Serrano, 454 U.S. 1 (1981). A final judgment consistent with this memorandum
opinion will issue today.

SO ORDERED, this the 29th day of August, 2013.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI