Gibbs v. Simon et al
ORDER OF DISMISSAL. CASE CLOSED. Signed by District Judge Debra M. Brown on 4/4/16. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
HENRY GIBBS, JR.
LEE SIMON, ET AL.
ORDER OF DISMISSAL
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner
Henry Gibbs, Jr., has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, seeking to challenge his April 29, 2015, guilty plea to armed robbery and resulting
sentence. Because Gibbs failed to exhaust his available state court remedies before filing the
instant action, his petition will be dismissed.
A petitioner seeking federal habeas relief must first exhaust his available state court
remedies. See 28 U.S.C. § 2254(b) & (c); O’Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999).
The exhaustion requirement is satisfied when the habeas claim has been presented to the highest
state court in a procedurally proper manner. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999). If a petitioner fails to exhaust his claims before seeking federal habeas relief, his federal
habeas petition must ordinarily be dismissed. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
See Duncan v. Walker, 533 U.S. 167, 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
If a petitioner fails to exhaust any of his claims before seeking federal habeas relief, a
federal district court must dismiss the “mixed petition” in its entirety. Rose v. Lundy, 455 U.S.
509, 510 (1982). A petitioner may, in limited circumstances, file a protective federal habeas
petition and request that the habeas court stay his action and hold the petition in abeyance while
he exhausts his claims in state court. Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). Such a
stay is only appropriate, however, if the petitioner shows: (1) good cause for his failure to
exhaust, (2) that his unexhausted claims are not plainly meritless, and (3) that there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics. Rhines v. Weber,
544 U.S. 269, 277-278 (2005).
In his federal habeas petition, Gibbs concedes that he has not filed an application for
post-conviction relief. The Court notes that he currently has an “available procedure” under state
law through which he can exhaust his claims. See 28 U.S.C. § 2254(c). Gibbs can satisfy the
exhaustion requirement through utilization of the Mississippi Uniform Post-Conviction
Collateral Relief Act, Miss. Code Ann. §§ 99-39-1, et seq. See Miss. Code Ann. § 99-39-5(2)
(“A motion for relief under this article shall be made … in case of a guilty plea, within three (3)
years after entry of the judgment of conviction.”).
The Court finds that there are no “limited circumstances” that warrant a stay and
abeyance in this case. While the federal statute of limitations under 28 U.S.C. § 2244 provides
for only a one-year statute of limitations period, the Court notes that the filing of a state postconviction application will toll the federal statute of limitations as long as the pleading is
pending in state court. See 28 U.S.C. § 2244(d)(1) & (2). Inasmuch as Gibbs pleaded guilty to
armed robbery on April 29, 2015, he, acting with diligence, has sufficient time to exhaust his
claims through a state post-conviction application and, if necessary, return to federal court and
file a timely habeas petition. Therefore, a stay and abeyance is unnecessary to protect his ability
to file a timely federal habeas petition after his state remedies are exhausted.
Accordingly, Gibbs’ petition  is DISMISSED without prejudice for failure to exhaust
available state court remedies. All other pending motions are DISMISSED as moot.
SO ORDERED, this 4th day of April, 2016.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
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