Craig v. Mississippi Dept. of Corrections

Filing 52

ORDER denying 48 Motion for Release from Custody/Discharge from Mississippi Department of Correction Custody; denying 49 Motion for Transcript. Signed by District Judge Louis Guirola, Jr., on 11/8/2017. (BR)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
HENRY LEE CRAIG
v.

PETITIONER
CAUSE NO. 1:16CV371-LG-FKB

J. BRADLEY, Warden, and
G. WALKER, Warden

RESPONDENTS

ORDER DENYING MOTION FOR RELEASE FROM
CUSTODY/DISCHARGE FROM MISSISSIPPI DEPARTMENT
OF CORRECTION CUSTODY AND MOTION FOR TRANSCRIPT
BEFORE THE COURT are the Motion [48] for “Release from
Custody/Discharge from Mississippi Department of Correction Custody” and Motion
[49] for “Transcript of Cause No. 1:16CV371-LG-FKB for Appeal” filed by the
petitioner Henry Lee Craig. After reviewing the Motions, the record in this matter,
and the applicable law, the Court finds that both Motions should be denied.
BACKGROUND
A Jackson County, Mississippi jury convicted Craig of murder, and he was
sentenced to life in prison. After the Mississippi Court of Appeals affirmed his
conviction, Craig filed a petition for writ of habeas corpus. This Court dismissed
Craig’s petition as untimely on August 24, 2017. Craig filed a Notice of Appeal of
the dismissal of his petition on September 21, 2017. Soon afterwards, he filed a
Motion for Release from Custody/Discharge from MDOC Custody, citing insufficient
evidence and wrongful deprivation of his federal constitutional rights. He also filed
a Motion for Transcript in which he seeks a copy of the “transcript/record of this . . .

cause 1:16cv371-LG-FKB to supporting relating [sic] facts/evidence in his appellant
[sic] appeal.”
DISCUSSION
“Generally, the filing of a valid notice of appeal from a final order of the
district court divests that court of jurisdiction to act on the matters involved in the
appeal, except to aid the appeal, correct clerical errors, or enforce its judgment . . . .”
In re Hermesmeyer, 688 F. App’x 300, 303-04 (5th Cir. 2017) (citing Avoyelles
Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 928 (5th Cir. 1983)). The aiding
the appeal exception permits the district court to “tak[e] any steps during the
pendency of the appeal that will assist the court of appeals in its determination.”
Id. at 304.
Craig’s Motion seeking release from custody for insufficient evidence and
violation of his constitutional rights pertains to the merits of Craig’s appeal before
the Fifth Circuit. In order to grant the relief Craig requests, this Court would be
required to first rescind its Order dismissing Craig’s petition as untimely. The
timeliness of Craig’s petition is a matter that is pending before the Fifth Circuit.
Therefore, this Court does not have jurisdiction to consider the Motion for release
from custody, and the Motion must be denied.
The Court does have jurisdiction to consider Craig’s Motion for copies of
transcripts and pleadings filed in this matter, because resolution of that Motion
could aid the appeal. However, “[a]n indigent habeas prisoner is not entitled to a
free copy of his trial transcript and record to search for possible . . . defects merely

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because he is an indigent.” Johnson v. Johnson, No. 98-10947, 194 F.3d 1309, at *1
(5th Cir. Sept. 3, 1999); see also Brewer v. Dir. of Miss. Dep’t of Corr., No. 2:09cv224P-S, 2010 WL 503062, at *2 (N.D. Miss. Feb. 8, 2010). Craig has not explained how
the pleadings he seeks would assist him in preparing his appeal, and it is unlikely
that the pleadings would assist him because his petition was dismissed as untimely.
As a result, Craig’s Motion for copies of transcripts and pleadings is denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that the Motion [48]
for Release from Custody/Discharge from Mississippi Department of Correction
Custody and Motion [49] for Transcript of Cause No. 1:16CV371-LG-FKB for Appeal
filed by the petitioner Henry Lee Craig are DENIED.
SO ORDERED AND ADJUDGED this the 8th day of November, 2017.
s/

Louis Guirola, Jr.

Louis Guirola, Jr.
United States District Judge

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