Havard v. George County Correctional Facility

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 28 Report and Recommendations, granting 10 Motion to Dismiss, filed by Bobby C. Fairly. This civil action is dismissed without prejudice. Signed by District Judge Halil S. Ozerden on 2/17/2021 (wld)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CASEY THOMAS HAVARD

v.

BOBBY C. FAIRLEY
Warden

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PETITIONER

Civil No. 1:20-cv-137-HSO-JCG

RESPONDENT

ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [28], GRANTING RESPONDENT’S MOTION [10] TO
DISMISS, AND DISMISSING PETITIONER’S PETITION [1] FOR HABEAS
CORPUS RELIEF WITHOUT PREJUDICE
BEFORE THE COURT are Respondent Bobby C. Fairley’s Motion [10] to
Dismiss and the Report and Recommendation [28] of United States Magistrate
Judge John C. Gargiulo, which recommends granting the Motion [10] to Dismiss
and dismissing Petitioner Casey Thomas Havard’s Petition [1] under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus without prejudice. Petitioner has not objected to
the Report and Recommendation [28], and the time for doing so has passed.
Having considered the Report and Recommendation [28], the record as a
whole, and relevant legal authority, the Court finds that the Report and
Recommendation [28] should be adopted as the finding of the Court, Respondent
Bobby C. Fairley’s Motion [10] to Dismiss should be granted, and Petitioner Casey
Thomas Havard’s Petition [1] under 28 U.S.C. § 2254 for Writ of Habeas Corpus

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should be dismissed without prejudice for failure to exhaust his available state
court remedies.
I. BACKGROUND
A.

Factual background
On April 23, 2018, Petitioner Casey Thomas Havard (“Petitioner” or

“Havard”) pled guilty in the Circuit Court of George County, Mississippi (the
“Circuit Court”), to the crimes of possession of a controlled substance and fleeing
while in a vehicle from a law enforcement officer. See Pet. [10-4] at 1-3; Order [105] at 1-2. Petitioner was sentenced to serve eight years in the custody of the
Mississippi Department of Corrections (“MDOC”) on the possession of controlled
substance conviction, with five years to serve and the remaining three years to be
served under post-release supervision. Order [10-5] at 1. Petitioner was sentenced
to a concurrent term of five years on the fleeing conviction, and the Circuit Court
recommended Petitioner to a Recidivism Reduction Program. Id. at 2.
On November 2, 2018, Petitioner filed a Petition [10-6] for Judicial Review in
the Circuit Court, claiming that he had completed the Recidivism Reduction
Program and asking the Circuit Court to transfer him to a restitution center in
Pascagoula, Mississippi. See Ex. F [10-6]. The Circuit Court did not rule on the
Petition, and on April 26, 2019, Petitioner filed a petition for writ of mandamus in
the Mississippi Supreme Court seeking a ruling. See Ex. G [10-7] at 1-2. The
Mississippi Supreme Court ordered the Circuit Court to respond and on May 9,
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2019, the Circuit Court granted the Petition [10-6] and recommended that
Petitioner “be placed in the Recidivism Reduction Program, and [that] the [c]ourt
retained jurisdiction.” See Ex. G [10-7] at 1-2. The Mississippi Supreme Court
then dismissed the petition for mandamus as moot.
On May 14, 2019, the Circuit Court found that Petitioner had met the
prerequisites for release on probation and ordered that the “remainder of
[Petitioner’s] original sentence previously imposed on April 23, 2018, . . . is hereby
suspended with the exception of time served. The [Petitioner] is hereby placed on
reporting post release supervision for FIVE (5) years.” See Ex. I [10-9] at 1-2.
While Petitioner was on post-release supervision, he was arrested for felony
fleeing, burglary, and motor vehicle theft. Ex. Q [10-17] at 1. The Circuit Court
revoked Petitioner’s probation and ordered that he serve the remainder of his
suspended sentence in the custody of the MDOC. See Ex. Q [10-17] at 1; Order of
Revocation [10-8].
B.

Procedural history
On April 9, 2020, Petitioner filed a Petition [1] in this Court under 28 U.S.C.

§ 2254 for Writ of Habeas Corpus “challenging the revocation of [his] probation and
or parole that was suppose [sic] to be probation.” Pet. [1] at 1-15; Resp. to Order [5]
at 1-4. Petitioner asserts that he has exhausted his state court remedies on
grounds that he had already filed a petition for writ of mandamus in the Mississippi
Supreme Court. See Pet. [1] at 1-15. Respondent Warden Bobby C. Fairley
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(“Respondent”) filed a Motion to Dismiss [10] contending that Petitioner’s claims are
procedurally barred from federal habeas review, or alternatively, are unexhausted.
Mot. [10] at 1-14. Petitioner filed a Response [13], and Respondent filed a Reply
[20].
On January 26, 2021, the Magistrate Judge entered a Report and
Recommendation [28] recommending that Respondent’s Motion [10] be granted and
that the Petition [1] be dismissed without prejudice for failure to exhaust state
court remedies under 28 U.S.C. § 2254(b)(1)(A). R. & R. [28] at 6-7. Petitioner has
not filed any objections to the Report and Recommendation [28], and the time for
doing so has passed.
II. DISCUSSION
Where a party has filed objections to a magistrate judge’s report and
recommendation, the district 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.” 28 U.S.C. § 636(b)(1); see also Longmire v. Gust, 921 F.2d
620, 623 (5th Cir. 1991) (party filing written objections is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made”).
However, where no party has objected to a magistrate judge’s report and
recommendation, the Court need not conduct a de novo review of it. 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
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objection is made.”). In such cases, the Court applies the “clearly erroneous, abuse
of discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Having conducted the required review, the Court concludes that the Report
and Recommendation [28] is neither clearly erroneous nor contrary to law. The
Court will adopt the Magistrate Judge’s Report and Recommendation [28] as the
opinion of this Court and will grant Respondent’s Motion [10] to Dismiss on grounds
that Petitioner has failed to exhaust his available state court remedies under 28
U.S.C. § 2254(b)(1)(A). As such, the Petition [1] should be dismissed.
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [28] of United States Magistrate Judge John C. Gargiulo entered
in this case on January 26, 2021, is ADOPTED in its entirety as the finding of this
Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Respondent Bobby
C. Fairley’s Motion [10] to Dismiss is GRANTED.

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IT IS, FURTHER, ORDERED AND ADJUDGED that, this civil action is
DISMISSED WITHOUT PREJUDICE. A separate judgment will be entered in
accordance with this Order as required by Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 17th day of February, 2021.

s/ Halil Suleyman Ozerden

HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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