Jones v. Grimes et al

Filing 26

ORDER granting 15 Motion to Dismiss; adopting 22 Report and Recommendations. The Report and Recommendation of United States Magistrate Judge F. Keith Ball is hereby adopted as the finding of this Court. Jones's claims are dismissed without prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on February 12, 2013. (SP)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ERIC DE’JUAN JONES
v.

PLAINTIFF
CIVIL ACTION NO. 4:12CV138-DPJ-FKB

WARDEN BARTLEY GRIMES, et al.

DEFENDANTS
ORDER

This petition for writ of habeas corpus is before the Court on the Report and
Recommendation [22] of Magistrate Judge F. Keith Ball. Judge Ball recommended dismissal
without prejudice for failure to exhaust. Jones filed an objection [23], in which he acknowledged
that he has not exhausted his state-court remedies but asked the Court to excuse that failure
because the state courts have delayed ruling on his pending post-conviction petition and because,
according to him, once his earned time is credited back to him, he is due to be released on
February 20, 2013. The Court, having fully reviewed the Report and Recommendation and
Jones’s Objection, finds that said Report and Recommendation should be adopted as the opinion
of this Court.
“Appellants seeking habeas relief under § 2254 are required to exhaust all claims in state
court prior to requesting federal collateral relief.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.
1999) (citation omitted). Exhaustion requires a habeas petitioner to “fairly apprise the highest
court of his state of the federal rights which were allegedly violated . . . in a procedurally correct
manner.” Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993) (citations omitted). “The
exhaustion requirement is excused only in those ‘rare cases where exceptional circumstances of
peculiar urgency’ mandate federal court interference.” Deters, 985 F.2d at 795 (citing Ex parte
Hawk, 321 U.S. 114, 118 (1944)). Exhaustion may not be required “when the state system

inordinately and unjustifiably delays review of a petitioner’s claims so as to impinge upon his
due process rights.” Id. (citations omitted). “Noncompliance with the exhaustion doctrine is
excused only if the inordinate delay is wholly and completely the fault of the State; the
petitioner’s hands must be clean.” Hansen v. Thaler, No. 12-20343, 2013 WL 211576, at *1 (5th
Cir. Jan. 18, 2013).
In this case, Jones filed a PCR petition with the Circuit Court of Lawrence County on
October 1, 2012. Having heard nothing from that court, on December 3, 2012, Jones filed a
petition for a writ of mandamus with the Mississippi Supreme Court. At this point, the
Mississippi Supreme Court has not yet been given a procedurally-proper fair opportunity to pass
upon the merits of Jones’s claims, and his federal claims are therefore premature. And the minor
delay about which Jones complains does not, in and of itself, “impinge upon [Jones’s] due
process rights” so as to excuse exhaustion. See Johnson v. Roberts, No. 96-60153, 1996 WL
405773, at *2 (5th Cir. July 1, 1996) (explaining that delays of fifteen months or more
presumptively impinged upon petitioners’ due process rights). Jones’s petition will be dismissed
without prejudice so that he may complete exhaustion of his state court remedies.
IT IS, THEREFORE, ORDERED that the Report and Recommendation of United States
Magistrate Judge F. Keith Ball be, and the same is hereby, adopted as the finding of this Court.
Jones’s claims are dismissed without prejudice.
SO ORDERED AND ADJUDGED this the 12th day of February, 2013.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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