Le v. Epps et al

Filing 52

ORDER granting 44 Motion to Stay Proceedings; proceedings stayed pending outcome of state court case. Signed by Chief District Judge Louis Guirola, Jr on July 9, 2013 (Rushing, Terryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THONG LE

PETITIONER

VS.

CIVIL ACTION NO. 1:07CV1128LG

CHRISTOPHER EPPS, Commissioner, Mississippi
Department of Corrections and JIM HOOD,
Attorney General, State of Mississippi

RESPONDENTS

ORDER STAYING CASE
This matter came before the Court on Petitioner’s Motion to Hold Petition in Abeyance
Pending Exhaustion of Available State Court Remedies [44]. The basis for the Motion is
Petitioner’s pending petition for leave to file a successive post-conviction petition in state court. The
petition seeks judicial review of claims of ineffectiveness of counsel. Those claims were raised in
the habeas petition currently before this Court. Respondents maintain that one of the claims has
already been exhausted in state court; however, they concede that the other claim is unexhausted.
Respondents oppose staying this case, however, because claims brought in a petition for a successive
writ are barred from review under state law. Miss. Code Ann. § 99-39-27(9) (1972 & Supp. 2012).
Respondent’s assertion mirrors this Court’s understanding of state law prior to the
Mississippi Supreme Court’s decision in Grayson v. State, No. 2012-DR-59, 2013 WL 1668981
(Miss. Apr. 18, 2013). In its opinion on that case, the court reviewed a successive post-conviction
petition alleging ineffectiveness of post-conviction counsel, holding, “[T]oday we make clear that
PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR
counsel.” Id., 2013 WL 1668981 at *5. Grayson’s conviction and sentence were affirmed on direct
appeal in 2001, and his original post-conviction petition was denied in 2004. In making this

decision, the Mississippi Supreme Court has announced its intent to review claims of ineffectiveness
of post-conviction counsel in successive petitions, years after the initial post-conviction petition was
decided. This Court cannot say with any authority that there is a distinction between Blayde
Grayson’s case and Thong Le’s case that would preclude review of Le’s successive petition.
For all of these reasons, the Court is of the opinion that further proceedings in this case
should be stayed pending the outcome of Le’s case in the Mississippi Supreme Court. At that time,
the Court will decide whether a briefing schedule should be set for submission of further arguments
related to Le’s habeas petition and enter any appropriate orders.
IT IS, THEREFORE, ORDERED that this matter is stayed until further order of this Court.
IT IS SO ORDERED, this the 9th day of July, 2013.

s/Louis Guirola, Jr.
LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

2