Hays v. Fisher et al
MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 8/9/17. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
MARSHALL FISHER, ET AL.
This matter comes before the court on the pro se petition of Howard Hays for a writ of habeas
corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition for failure to exhaust
state court remedies. The petitioner has not responded to the motion; the deadline to do so has
expired, and the matter is ripe for resolution. For the reasons set forth below, the State’s motion will
be granted, and the instant petition for a writ of habeas corpus will be dismissed without prejudice for
failure to exhaust state remedies.
Under 28 U.S.C. § 2254(b)(1), a prisoner seeking habeas corpus relief must first exhaust state
remedies. Section 2254 provides, in relevant part:
(b)(1) An application for a writ of habeas corpus on 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 the 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.
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).
Howard Hayes pled guilty to burglary (Count I) and grand larceny (Count II) in the
Circuit Court of LeFlore County, Mississippi. He was sentenced as a habitual offender under
Miss. Code Ann. § 99-19-81 to serve a term of seven years on Count I and a consecutive
sentence of five years on Count II in the custody of the Mississippi Department of Corrections.
Hayes states in his petition, and the Leflore County Circuit Court records confirm, that he
currently has a motion for post-conviction relief pending in that court challenging the
convictions and sentences at issue in the instant petition.
The petitioner still has available the remedy of state post-conviction collateral relief, which he
is pursuing in state court. As such, the instant petition for a writ of habeas corpus must be dismissed
for failure to exhaust state remedies. The court cautions the petitioner that the one-year federal habeas
corpus limitations period has been running during the pendency of this federal petition, and the
petitioner needs to move with diligence to ensure that he exhausts state remedies prior to the
expiration of the federal habeas corpus deadline. A final judgment consistent with this memorandum
opinion will issue today.
SO ORDERED, this, the 9th day of August, 2017.
/s/ Sharion Aycock____________
U.S. DISTRICT JUDGE
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