Ransburgh v. Mississippi Dept. of Correction et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker dismissing case with prejudice 32 . A separate Judgment shall be entered. All other pending motions 20 , 23 , 25 , 30 , are denied as moot. Signed by District Judge Keith Starrett on October 25, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

LEWIS RANSBURGH, #0834
VS.

CIVIL ACTION NO. 2:12cv101-KS-MTP

CHRISTOPHER EPPS
ORDER ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition of Lewis Ransburgh for Writ of Habeas
Corpus [1], Report and Recommendation of Magistrate Judge Michael T. Parker [32],
Objection thereto filed by Petitioner [34] and the Court after considering the applicable
case law, the above documents, and the record in the case finds that the petition is not
well taken and that the petition should be dismissed with prejudice for the following
reasons, to-wit:
FACTUAL BACKGROUND
Pro se petitioner Lewis Ransburgh was convicted of murder in Hinds County,
Mississippi, and was sentenced to life imprisonment.1 He is currently incarcerated in
the Mississippi State Penitentiary.
In his petitions,2 Petitioner challenges two Rule Violation Reports (“RVR”) and the
guilty findings relating to them. He received RVR No. 1144472 on January 6, 2011, and
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Information available at:
http://www.mdoc.state.ms.us/InmateDetails.asp?PassedId=07834 (last visited
September 20, 2012).
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Petitioner filed two different petitions [1][2] essentially asserting the same
ground.
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received RVR No. 1143510 on March 14, 2011, both for testing positive for THC
(marijuana). Ex. A to Response [10-1] at 4; Ex. B [10-2] at 6. He was found guilty of
the RVRs after two disciplinary hearings conducted on January 19, 2011, and March 21,
2011. As a result of the guilty findings, he was referred to the Behavior Modification
Program for two days and lost his privileges for two months. Id.; see also Petitions
[1][2].
Petitioner appealed the RVRs through the Administrative Remedy Program
(“ARP”) but was denied relief. See Exs. A and B to Response [10-1][10-2]. Petitioner
appealed the ARP decisions to the Green County Circuit Court, which affirmed the ARP
decisions on August 17, 2011. See Ex. C to Response [10-3]. The Green County
Circuit Court denied Petitioner’s Motion for Relief from Order of Judgment on
September 8, 2011. See Ex. D to Response [10-4]. Petitioner filed a notice of appeal in
the Green County Circuit Court seeking to appeal the court’s August 17, 2011, decision.
See Ex. E to Response [10-5]. Petitioner was advised he was responsible for the filing
fee to appeal to the Mississippi Supreme Court. See Ex. F to Response [10-6].
Petitioner was subsequently granted an extension through October 28, 2011, by
the Mississippi Supreme Court to pay the filing fee and file his designation of the record.
See Exs. G and H to Response [10-7][10-8]. On October 31, 2011, a deficiency notice
was sent to Petitioner informing him that he had fourteen days to pay the costs of
appeal and file the designation of the record. See Ex. I to Response [10-9]. On or
about November 7, 2011, Petitioner filed a motion to proceed in forma pauperis. See
Ex. J to Response [10-10]. The Mississippi Supreme Court denied the motion,
reasoning that the motion was not well-taken since Petitioner was appealing an
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administrative decision regarding inmate discipline. See Ex. K to Response [10-11].
On November 17, 2011, Petitioner's appeal was dismissed for failure to pay the costs of
appeal; a mandate was issued on December 8, 2011. See Exs. L and M to Response
[10-12][10-13].
Petitioner subsequently filed a “Motion to Stay in the Supreme Court of
Mississippi from the Court of Appeals, Memorandum of In Forma Pauperis;” the
Mississippi Supreme Court denied the motion on March 6, 2012. See Exs. N and O to
Response [10-14][10-15]. Petitioner then filed a “Petition for an Re-hearing Writ of
Mandamus,” which was denied on May 10, 2012. See Exs. P and Q to Response [1016][10-17].
Petitioner filed the instant federal habeas petition on June 15, 2012, raising the
following ground: "Due process alternate method was not perform. Prison medication
cross-reactivity with prison drug test cup." See Petition [1] at 5. Petitioner clarifies his
allegations in his second petition (as stated by Petitioner): "2 unconformation drug test.
The first step is screening the urine. The second step is confirming the results. The first
step was perform, but the second step was not perform, I was conviction of two
preliminary false positive drug test. Due process was not perform, second test." Petition
[2] at 1. Petitioner seeks the following relief: for the court to dismiss the two RVRs and
"to set an order sending petitioner back to the parole board." Petition [2] at 11. The
Respondent claims that the petition should be denied for Petitioner’s failure to exhaust
his state remedies.
STANDARD OF REVIEW

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When a party objects to a 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.” 28 U.S.C. § 636(b)(1). See
also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo
review by an Article III Judge as to those issues to which an objection is made.”) Such
review means that this Court will examine the entire record and will make an
independent assessment of the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37,
40 (5th Cir. 1993) nor need it consider objections that are frivolous, conclusive or general
in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 1997).
No factual objection is raised when a petitioner merely reurges arguments
contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
PETITIONER’S OBJECTIONS AND ANALYSIS
The Report and Recommendation of Judge Parker finds that the petitioner has
failed to exhaust state remedies, which is a mandatory prerequisite to federal habeas
relief under 28 U.S.C. § 2254(b)(1). The Report and Recommendation further finds that
the time to exhaust has passed, with results in a procedural default of his habeas claim
and a bar to its review by this Court. The Report and Recommendation further finds
that the narrow exceptions to procedural default, which are “cause and actual prejudice”
and “fundamental miscarriage of justice,” do not apply.
The objection, which is a long narrative by the petitioner goes through the
reasons for his complaint and his argument for the impropriety of the ruling on the
RVRs. He talks about the potential for false positive drug tests, failure to obtain
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confirmation tests, and the fact that the RVR procedure was not carried out. He also
argues that his due process rights were violated.
However, the petitioner fails to address the issue of exhaustion. This Court is
faced with clear law that states that if the claims have not been exhausted in the state
system, then they are not proper in this Court. Also, this Court finds that the time has
passed for exhaustion to occur and, therefore, this case should be dismissed with
prejudice. The other pending motions for: Preliminary Injunction and Temporary
Restraining Order [20], Motion for Entry of Default Judgment [23], Motion for Violation of
Preliminary Injunction [25], and Motion to Acknowledge MDOC Wrongdoing [30] are
moot and should be terminated for docket control purposes.
CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent
review of the entire record and a de novo review of the matters raised by the objections.
For the reasons set forth above, this Court concludes that Ransburgh’s objections lack
merit and should be overruled. The Court further concludes that the Report and
Recommendation is an accurate statement of the facts and the correct analysis of the
law in all regards. Therefore, the Court accepts, approves and adopts the Magistrate
Judges’s factual findings and legal conclusions contained in the Report and
Recommendation. Accordingly, it is ordered that the United States Magistrate Judge
Michael T. Parker’s Report and Recommendation is accepted pursuant to 28 U.S.C. §
636(b)(1) and that Lewis Ransburgh’s claim is dismissed with prejudice. All other
pending motions, specifically motions numbered [20], [23], [25], and 30], are denied as

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moot.
SO ORDERED this, the 25th day of October, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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