Perkins v. State of Mississippi et al

Filing 3

MEMORANDUM OPINION and ORDER re 2 Final Judgment Dismissing petition. Signed by Michael P. Mills on 7/10/13. (mhg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
SHARRY DENISE PERKINS
v.

PETITIONER
CIVIL ACTION NO.: 3:13cv176-MPM-JMV

STATE OF MISSISSIPPI, et al.

RESPONDENTS

MEMORANDUM OPINION AND ORDER
This matter comes before the Court, sua sponte, for consideration of dismissal.
Petitioner, Sharry Denise Perkins, Mississippi prisoner number 172411, has filed a pro se petition
for federal habeas corpus relief pursuant to 28 U.S.C. § 2254, seeking to challenge her State
court conviction and sentence for the crime of burglary of a dwelling. Having considered
Perkins’ petition and the applicable law, the Court dismisses this action without prejudice for the
following reasons.
Background
In her federal habeas petition, Perkins maintains that she pleaded guilty to the crime of
burglary of a dwelling in the Circuit Court of DeSoto County, Mississippi, and was sentenced on
November 2, 2011, to serve a term of ten years in the custody of the Mississippi Department of
Corrections.1 In the instant petition, she alleges as grounds for relief that (1) she was forced to
accept a plea bargain; (2) she was charged with the wrong crime; (3) she was misinformed about
sentencing, and (4) her sentence should have reflected that she was a nonviolent, first-time
offender. Perkins concedes that she filed her federal habeas petition on or about July 5, 2013,
without first seeking any post-conviction relief in State court.

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A ten year term of supervised release was also imposed.
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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 substance of the habeas claim has been
presented to the highest state court in a procedurally proper manner. See 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.”).
The Court finds that Perkins has failed exhaust her available State remedies through the
Mississippi Post-Conviction Collateral Relief Act. 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 § 99-39-5(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 Perkins clearly
concedes that he has not pursued her claims through avenues still available in State court, she
does not meet the exhaustion requirement, and the instant petition will be dismissed without
prejudice for Perkins’ failure to exhaust her available State remedies. A separate final judgment
consistent with this memorandum opinion and order will issue today.
SO ORDERED this the 10th day of July, 2013.
/s/ Michael P. Mills
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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