Smith v. Waller
ORDER Adopting Report and Recommendation re 12 Report and Recommendation; denying Petitioner's 7 Motion to Stay Case; granting Respondent's 11 Motion to Dismiss. The case is dismissed without prejudice. No Certificate of Appealability shall issue. Signed by District Judge Carlton W. Reeves on 06/21/2012 (WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NECKO SMITH, #80876
CAUSE NO. 3:11-CV-00675-CWR-FKB
ORDER ADOPTING REPORT AND RECOMMENDATION
Although federal law requires habeas corpus petitioners first to exhaust all remedies
available to them in state court, federal courts occasionally stay habeas proceedings to allow
petitioners to finish their state-court cases. Such a stay requires, among other things, that the
petitioner show good cause for his failure to exhaust state-court remedies. In this case, the
petitioner contends that good cause exists, but he has made no effort to explain that good cause.
Therefore, he has not shown that the magistrate judge erred in recommending that this case be
Necko Smith is an inmate in the custody of the Mississippi Department of Corrections
serving a sentence related to the sale of marijuana.1 Prior to serving the sentence for which he is
incarcerated, he also was convicted of armed robbery, conspiracy to commit armed robbery, and
sale of cocaine.2
On November 1, 2011, Smith filed a petition for writ of habeas corpus in federal court.
Specifically, Smith contends that he is incorrectly being considered a habitual offender and has,
Report and Recommendation [Docket No. 12] at 1-2.
Report and Recommendation at 1.
in truth, completed his prison sentence.3 However, Smith has not exhausted his available
remedies in state court; by his own admission, he currently has a civil action pending in
Sunflower County Circuit Court regarding his claim, and the trial judge has not yet adjudicated
that matter. Therefore, the Mississippi Supreme Court has not yet had an opportunity to address
After Smith filed his petition, the parties traded motions; Smith moved for a stay4 of these
proceedings pending a resolution in state court, and Warden Waller, the respondent, moved for
On May 14, 2012, Magistrate Judge F. Keith Ball entered a Report and Recommendation
in which he suggested (1.) that Smith’s petition be dismissed without prejudice for failure to
exhaust available state-court remedies6 and (2.) that Smith’s motion for a stay be denied.
Smith lodged an objection7 to Judge Ball’s recommendations on June 18, 2012. That
objection entitled him to de novo review of Judge Ball’s recommendation, since Warden
Waller’s motion to dismiss is a potentially dispositive request.8
In his objection, Smith concedes that he has not yet exhausted his available state-court
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State
Custody [Docket No. 1] at 5.
In re Smith vs. Waller, 3:11-cv-00675 [Docket No. 7].
Motion to Dismiss Pursuant to 28 U.S.C. § 2254(b) and (c) [Docket No. 11].
Report and Recommendation at 1 (citing 28 U.S.C. § 2254(b)(1)).
Motion to Object to Report and Recommendation [Docket No. 14] (hereinafter
Fed. R. Civ. P. 72(b)(3).
remedies.9 However, Smith claims only that he “has good cause for failure to exhaust his claims
first in state court;”10 he does not elaborate on the basis of that good cause.
Similarly, Smith avers summarily that “[t]here is no indication that the petitioner engaged
in intentionally dilatory litigation”11 and that “[t]he unexhausted claims are not plainly
Smith apparently offers these arguments in response to Judge Ball’s reliance on the test
used to evaluate motions to stay in habeas cases. As Judge Ball correctly explained, the Supreme
Court held in Rhines v. Weber13 that in a habeas case where claims are unexhausted, “[s]tay and
abeyance is only appropriate when three requirements are met: (1) there is good cause for the
petitioner’s failure to exhaust his claims first in state court; (2) the unexhausted claims are not
plainly meritless; and (3) there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.”14
But Smith does not explain why good cause exists; he only claims that it does. Without
any argument explaining that point, he provides this Court with no basis to find that good cause
Objection at 2 (“Petitioner [sic] complaint is still pending before the Circuit Court of
Objection at 2.
Objection at 2.
Rhines v. Weber, 544 U.S. 269 (2005).
Report and Recommendation at 4 (citing Rhines, 544 U.S. at 278).
exists, and it cannot be said that Judge Ball erred in determining that Smith lacked good cause.15
Therefore, Judge Ball’s Report and Recommendation is adopted in full. This case will be
dismissed without prejudice. Additionally, because Smith has not established that “jurists of
reason would find it debatable whether [this] court was correct in its procedural ruling,”16 no
Certificate of Appealability shall issue.
A Final Judgment memorializing this decision will be entered on this day.
SO ORDERED this Twenty-First day of June 2012.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
See L&A Contracting Co. v. Southern Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir.
1994) (failure to support claims with adequate argument results in the abandonment thereof).
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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