Brown v. Epps et al

Filing 33

ORDER granting 30 Motion to Stay and Abate Pending State Court Successive Petition; Clerk of Court directed to remove case from active docket; Petitioner ordered to notify Court within 30 days of final adjudication of request to file successive petition. Signed by District Judge Halil S. Ozerden on August 4, 2014 (Rushing, Terryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOSEPH PATRICK BROWN
VS.

PETITIONER
CIVIL ACTION NO.: 5:12CV91HSO

CHRISTOPHER EPPS, Commissioner,
Mississippi of Corrections; EARNEST LEE,
Superintendent, Mississippi State Penitentiary
at Parchman, Mississippi

RESPONDENTS

ORDER GRANTING MOTION TO STAY AND
ABATE PENDING STATE COURT SUCCESSIVE PETITION
This matter came before the Court on Petitioner’s Motion to stay this matter while he seeks
relief in state court by way of a successive state post-conviction petition. Respondents oppose the
Motion, arguing that the grounds raised for review have already been exhausted in state court,
making any subsequent post-conviction petition futile. Petitioner has responded that, while some
of the grounds raised are similar to earlier arguments made in state court, his new allegations are
sufficiently distinct to be unexhausted.
The Court has reviewed the arguments of counsel and believes that Brown’s new allegations
of ineffective assistance of trial and post-conviction counsel are arguably sufficiently distinct from
his original claims to be considered unexhausted. For that reason, the Court is of the opinion that
the state court ought to be given an opportunity to rule on these ineffectiveness claims. The
Mississippi Supreme Court has specifically recognized a right to effective post-conviction counsel.
Grayson v. State, 118 So. 3d 118, 126 (Miss. 2013). Since then, that court has displayed a
willingness to examine ineffectiveness claims by way of successive writs for post-conviction relief,
even in cases with habeas claims pending in this Court. See, e.g., Havard v. State, 2013-DR-1995

(Miss. filed Nov. 25, 2013); Thong Le v. State, 2013-DR-327 (Miss. filed Feb. 22, 2013); Walker
v. State, 131 So. 3d 562, 564 (Miss. 2013) (ineffectiveness claims remanded to circuit court for
hearing). Should that court decide that a review of Brown’s claims is similarly compelled,
contemporaneous litigation of Brown’s habeas claims in this Court would be inefficient and could
potentially lead to inconsistent results. For these reasons, the Court is of the opinion that the Motion
to Stay and Abate has merit and should be granted.
IT IS, THEREFORE, ORDERED that Brown’s Motion to Stay and Abate Proceedings
Pending State Court Successive Petition [30] is hereby GRANTED. The Clerk of the Court is
directed to remove this case from the Court’s active docket.
IT IS FURTHER ORDERED that Petitioner notify the Court within thirty days of a final
adjudication of his request to file a successive petition.
IT IS SO ORDERED, this the 4th day of August, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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