Laneri v. Fisher
MEMORANDUM OPINION AND ORDER granting 7 Motion to Dismiss; denying 9 Motion for Summary Judgment; denying 22 Motion to Dismiss; adopting Report and Recommendations re 24 Report and Recommendations. Dismissing without prejudice the Petition 1 for Habeas Corpus Relief. Signed by District Judge Halil S. Ozerden on 7/3/2017 (wld)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HENRY JOSEPH LANERI, III, #R0205
CIVIL NO. 1:16-cv-366-HSO-MTP
MEMORANDUM OPINION AND ORDER OVERRULING
PETITIONER’S OBJECTIONS , ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ,
GRANTING RESPONDENT’S MOTION  TO DISMISS, DENYING
PETITIONER’S MOTION  FOR SUMMARY JUDGMENT AND
MOTION  TO DISMISS, AND DISMISSING WITHOUT PREJUDICE
THE PETITION  FOR HABEAS CORPUS RELIEF
This matter comes before the Court on Petitioner Henry Joseph Laneri, III’s
Objections  to the Report and Recommendation  of United States Magistrate
Judge Michael T. Parker, entered in this case on April 25, 2017. The Magistrate
Judge recommended that the Court grant the Motion  to Dismiss filed by
Commissioner Fisher (“Respondent”), deny Petitioner Henry Joseph Laneri’s
(“Petitioner”) Motion  for Summary Judgment and Motion  to Dismiss, and
dismiss without prejudice Petitioner’s Petition Under 28 U.S.C. §2254 for Writ of
Habeas Corpus  on grounds that Petitioner failed to exhaust State remedies
before filing suit in federal court, as required by 28 U.S.C. § 2254 (b) – (c). R. & R.
, at 3-5.
Having considered the Report and Recommendation and having conducted a
de novo review of those portions to which Petitioner objects, the Court finds that
Petitioner’s Objections  should be overruled, and the Report and
Recommendation  should be adopted as the finding of the Court. Accordingly,
the Court will grant Respondent’s Motion  to Dismiss and deny Petitioner’s
Motion  for Summary Judgment and Motion  to Dismiss. The Petition for
habeas corpus relief pursuant to 28 U.S.C. § 2254 will be dismissed without
prejudice for failure to exhaust State court remedies. R. & R.  at 3-5.
I. RELEVANT BACKGROUND
In his Petition , Petitioner asks the Court to review the “unconst[itutional]
‘Revocation Sentence Order’” entered by the Circuit Court of Pearl River County,
Mississippi, while acknowledging that he did not exhaust his “state remedies”
because it was his understanding that the Order was not appealable under
Mississippi law. Pet.  at 1, 3, 5; Order of Revocation of Post Release [1-4] at 1.
On November 10, 2016, Respondent filed a Motion  to Dismiss arguing
that Petitioner did have a State law remedy under “the Mississippi Uniform PostConviction Collateral Relief Act, Mississippi Code Annotated, §§ 99-39-1, et seq.”
Mot. to Dismiss  at 3-4.
On or about January 25, 2017, Petitioner instituted an action in the Circuit
Court of Pearl River County, Mississippi, seeking post-conviction relief. Suppl.
Resp. in Opp’n [21-2] at 1-14. The Circuit Court of Pearl River County, Mississippi,
dismissed the case, and Petitioner appealed that decision to the Mississippi
Supreme Court. Petitioner’s appeal is docketed as 2017-TS-00407-COA. Reply 
On April 25, 2017, the Magistrate Judge entered his Report and
Recommendation  finding that because Petitioner’s “post-conviction relief
appeal” was still pending in State court: (1) Respondent’s Motion to Dismiss 
should be granted; (2) Petitioner’s Motion  for Summary Judgment should be
denied; (3) Petitioner’s Motion  to Dismiss Respondent’s Motion to Dismiss
should be denied; and (4) the Petition  should be dismissed without prejudice. R.
& R.  at 3-5.
Petitioner filed his Objections  to the Report and Recommendation on
May 5, 2017, asserting, in pertinent part, that to the best of his “Pro Se knowledge”
his State court appeal had been dismissed such that he had exhausted his State
court remedies. Obj.  at 3-4.
Standard of Review
Because Petitioner has filed Objections  to the Magistrate’s Report and
Recommendation , this Court is required to make a de novo determination of
those portions of the report or specified proposed findings or recommendations to
which objection is made. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993)
(citing 28 U.S.C. § 636(b)(1)). However, the district court need not “reiterate the
findings and conclusions of the magistrate judge.” Id. Nor must it consider
“[f]rivolous, conclusive or general objections.” Battle v. U.S. Parole Comm’n, 834
F.2d 419, 421 (5th Cir. 1987). With respect to those portions of the Report and
Recommendation to which Petitioner did not file objections, the Court reviews those
findings under a clearly erroneous or contrary to law standard. See United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
In reviewing Petitioner’s Objections , the Court is mindful that Congress,
through the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §
2241, et seq., has restricted federal court review of habeas petitions filed on behalf
of persons in State custody. White v. Thaler, 610 F.3d 890, 898 (5th Cir. 2010).
Specifically, 28 U.S.C. § 2254(d) provides:
(d) 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
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (emphasis added). “A state-court decision is contrary to clearly
established federal law when it ‘arrives at a conclusion opposite to that reached by
[the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable
facts.’” Trottie v. Stephens, 720 F.3d 231, 240 (5th Cir. 2013) (quoting Williams v.
Taylor, 529 U.S. 362, 413 (2000)).
The AEDPA’s substantively deferential posture towards the judgment of
State courts comports with its procedural requirement that a petitioner must
exhaust his remedies in State court before turning to the federal system for relief.
See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“Comity, in these
circumstances, dictates that [the petitioner] use the State’s established appellate
review procedures before he presents his claims to a federal court.”); Preiser v.
Rodriguez, 411 U.S. 475, 491 (1973) (“The rule of exhaustion in federal habeas
corpus actions is rooted in considerations of federal-state comity.”); Deters v. Collins,
985 F.2d 789, 794 (5th Cir. 1993) (“[T]he most dominant and important concern of
exhaustion is that of comity: State courts should have the first opportunity to make
right their mistakes.”).
Congress has generally prohibited federal courts from granting habeas relief
to persons in State custody unless a petitioner first presents his claim to the State
court. See 28 U.S.C. § 2254(b)–(c).
The exhaustion requirement is satisfied when the substance of the
federal claim is “fairly presented” to the highest state court on direct
appeal or in state post-conviction proceedings, “even if the state court
fails to address the federal claim,” Soffar v. Dretke, 368 F.3d 441, 467
(5th Cir. 2004), or, if the federal claim is not fairly presented but the
state court addresses it sua sponte, Jones v. Dretke, 375 F.3d 352, 355
(5th Cir. 2004).
Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013).
The Report and Recommendation should be adopted as the finding of the
The Report and Recommendation concluded that because Petitioner had not
exhausted his State court remedies, the Petition should be dismissed without
prejudice. R. & R.  3-5. Plaintiff’s relevant objection is based upon his belief
that his State court appeal has been denied such that he has now exhausted his
State court remedies.1
As of the date of this Order, the Court has reviewed the Mississippi Supreme
Court docket for Case No. 2017-CP-00407-COA, styled “Henry J. Laneri, III v. State
of Mississippi,” and finds that Petitioner’s State court appeal remains pending, and
that a briefing schedule was entered by the Clerk of that Court on July 5, 2017.2
Because Petitioner’s State court appeal remains pending, he has not exhausted his
State court remedies, and the Magistrate Judge properly recommended that the
Petition be dismissed without prejudice. Johnson, 712 F.3d at 231.
Having conducted the required review, the Court concludes that the
Magistrate Judge’s Report and Recommendation thoroughly considered all issues
and should be adopted as the opinion of the Court.
Petitioner raises other objections as well; however, the Court need not address these
because Petitioner’s State court action is still pending. Johnson, 712 F.3d at 231.
See https://courts.ms.gov/appellate_courts/generaldocket.html, case number 2017-TS00407-COA.
The Court finds that the Magistrate Judge properly recommended that
Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 be
dismissed without prejudice. The Report and Recommendation will be adopted as
the opinion of this Court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Petitioner’s
Objections  are overruled and the Magistrate Judge’s Report and
Recommendation , entered in this case on April 25, 2017, is adopted as the
opinion of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that Respondent
Commissioner Fisher’s Motion  to Dismiss is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Petitioner Henry J.
Laneri, III’s Motion  for Summary Judgment and Motion  to Dismiss are
DENIED, and the Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus 
filed October 14, 2017, is DISMISSED WITHOUT PREJUDICE. A separate
judgment will be entered in accordance with this Order, as required by Rule 58 of
the Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED, this the 3rd day of July, 2017.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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