Wansley v. State of Mississipip

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS Signed by District Judge Henry T. Wingate on 6/23/14 (MM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
THOMAS CALVIN WANSLEY
VS.

PETITIONER
CIVIL ACTION NO.: 3:13cv517-HTW-LRA

CHRISTOPHER EPPS

RESPONDENT

ORDER ADOPTING REPORT AND RECOMMENDATION
This court now adopts the Report and Recommendation [Docket no. 10] of United States
Magistrate Judge Linda R. Anderson (“Judge Anderson”). On August 27, 2013, petitioner
Thomas Calvin Wansley (“Wansley”) filed a petition for federal habeas relief. On October 9,
2013, respondent Christopher Epps (“Epps”) moved to dismiss [Docket no. 7] the petition. Judge
Anderson recommends that this motion should be denied as moot and that Epps’ motion to reset
deadlines [Docket no. 9] be granted, allowing the respondent to file an answer in 20 days.
After being convicted of aggravated assault with a firearm in the Circuit Court of Hinds
County, Mississippi, on November 2, 2011, Wansley was sentenced to serve 20 years, with
credit for the time served in the Mississippi Department of Corrections. The sentencing court
appended five years to his sentence, to run consecutively to his twenty-year term, to comply with
Mississippi’s statutorily mandated firearms enhancement. 1 Wansley appealed his conviction and
sentences, and on June 3, the Mississippi Court of Appeals affirmed his conviction and sentences
in Wansley v. State, 114 So.3d 793 (Miss. Ct. App. 2013), reh’g denied, Oct. 1, 2013, cert
denied, Dec. 12, 2013.

1

MISS. CODE ANN. § 97-37-37(1) provides:
Except to the extent that a greater minimum sentence is otherwise provided by any other provision of law,
any person who uses or displays a firearm during the commission of any felony shall, in addition to the
punishment provided for such felony, be sentenced to an additional term of imprisonment in the custody of
the Department of Corrections of five (5) years, which sentence shall not be reduced or suspended.

On August 27, 2013, Wansley filed the instant petition, challenging: the weight and
sufficiency of the evidence; the validity of his sentences; and the trial court’s decision to exclude
testimony concerning prior incidents between Wansley and the victim. On October 1, 2013,
Wansley’s motion for a rehearing in the state court was denied.
On October 9, 2013, Epps moved to dismiss. In this motion, Epps argued that since
Wansley had yet to file a petition for writ of certiorari with the Mississippi Supreme Court,
Wansley had failed to exhaust available state court remedies. Petitioners for federal habeas relief
under 28 U.S.C. § 2254 2 are required to exhaust all claims in state court before requesting
federal collateral relief. Parr v. Quarterman, 472 F.3d 245 (5th Cir. 2006). In order to satisfy §
2254(b)(1)’s exhaustion requirement, a “habeas petitioner must have fairly presented the
substance of his claim to the state courts.” Smith v. Dretke, 422 F.3d 269, 276 (5th Cir. 2005). A
habeas petitioner only fairly presents the substance of his or her claim to the state courts when he
or she submits the factual and legal basis of each claim to the highest available state court for
review. Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). A habeas petitioner who has yet to
exhaust all of his or her post-conviction remedies has failed to assert a cognizable right to federal
habeas relief under § 2254. See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir. 1997).
Epps, however, now concedes that on October 18, 2013, Wansley filed a petition for writ
of certiorari in the Mississippi Supreme Court. On December 12, 2013, the Mississippi Supreme
2

Title 28 U.S.C. § 2254 provides, in pertinent part, that:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for
a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)
(1) 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 unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)
(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights
of the applicant.

Court denied Wansley’s petition. Epps acknowledges that Wansley, at this point, has exhausted
his state court remedies. Epps, additionally, now requests an extension of time to file a response
to Wansley’s petition for habeas relief. [Docket no. 9]
This court now denies Epps’ motion to dismiss Wansley’s petition as moot, [Docket no.
7], and grants Epps’ motion to reset the deadline for Epps to file a responsive pleading. [Docket
no. 9]. This court, consequently, orders Epps to file an answer to Wansley’s petition within
twenty (20) days of the entry of this order.
SO ORDERED, this the 23rd day of June 2014
s/ Henry T. Wingate
UNITED STATES DISTRICT JUDGE