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Whitaker v. Lee

United States District Court, Fifth Circuit

October 3, 2013

TIMMY DALE WHITAKER, Petitioner,
v.
EARNEST LEE, et al., Respondents.

MEMORANDUM OPINION AND ORDER

MICHAEL P. MILLS, Chief District Judge.

Petitioner, Timmy Dale Whitaker, inmate no. 48914 currently confined at the Mississippi State Penitentiary, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, in which he seeks to challenge his State court convictions and sentences for the crimes of burglary of a dwelling and aggravated assault. Pending before the Court is Respondents' motion to dismiss the federal habeas petition pending in this action based on Petitioner's failure to exhaust his State court remedies. Petitioner has responded to the motion. Having considered the parties' filings and the applicable law, the Court grants Respondents' motion and dismisses the petition for the following reasons.

Background and Procedural History

Petitioner was convicted of aggravated assault (Count I) and burglary of a dwelling (Count II) in the Circuit Court of Alcorn County, Mississippi, on November 10, 2011. He was sentenced as an habitual offender to serve a term of twenty-five years on Count I and a consecutive term of twenty years on Count II to be served in the custody of the Mississippi Department of Corrections. ( See Resp'ts Mot. to Dismiss, Ex. A). He appealed his convictions and sentences to the Mississippi Supreme Court, raising the following issues:

A. The trial court erred in not granting a mistrial following prejudicial comments made by prospective jurors during voir dire.
B. Whitaker's constitutional and statutory right to a speedy trial was violated.
C. The trial court erred in failing to suppress the statement Whitaker made to Investigator Rogers while in the hospital. Whitaker was under the influence of narcotics and could not give a knowing and intelligent waiver of his Miranda rights.
D. The trial court erred in not granting Whitaker's motion for JNOV or in the alternative a new trial, as the verdicts are against the overwhelming weight of the evidence.

The Mississippi Court of Appeals affirmed the judgment of the circuit court on August 7, 2012. ( See Resp'ts Mot. to Dismiss, Ex. B); see also Whitaker v. State, 114 So.3d 725 (Miss. Ct. App. 2012), reh'g denied, March 19, 2013, cert. denied, June 6, 2013 (Cause No. 2011-KA-00857-COA). Petitioner did not file for leave to seek post-conviction relief challenging his aggravated assault and burglary of a dwelling convictions.

In his federal habeas petition, Petitioner raises the following claims (as stated by Petitioner):

Ground One. The trial court erred in not granting a mistrial following prejudicial comments made during voir dire.
Ground Two. Whitaker constitutional and statutory right to a speedy trial was violated by a two-year delay.
Ground Three. The trial court erred in failing to suppress the alleged statement Whitaker ...

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