United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATIONS
MICHAEL T. PARKER, Magistrate Judge.
This matter is before the Court on Jason Gunn's Petition for Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254 and on Respondent E.L. Sparkman's Motion to Dismiss  the Petition for failure to exhaust state court remedies. Having considered the parties' briefs, case record, and applicable law, the undersigned finds that the Petitioner's claims have not been fairly presented to the highest state court as required under § 2254(b)(1)(a), and, therefore, the motion to dismiss should be granted.
Facts and Procedural History
Jason Gunn, proceeding pro se and in forma pauperis, filed his Petition  for Writ of Habeas Corpus on February 21, 2013, challenging two Rules Violations Reports ("RVRs") written against him and the punishment imposed for the violations. Gunn is a postconviction inmate at South Mississippi Correctional Institution ("SMCI") in Leakesville, Mississippi. He received the RVRs while housed at SMCI.
In his petition, Gunn alleges that on December 29, 2011, a prison officer searched his living area and found a cellular telephone and marijuana in the ceiling area above his bed. Doc.  at 5, 7. As a result, Gunn received two RVRs, lost trusty status, and lost 6 months of earned time credit. Id. at 7. Gunn argues that the RVRs were not supported by substantial evidence, and he petitions the Court for an order expunging them from his record, restoring his earned time credits, and returning him to trusty status. Id. at 14.
The RVRs issued to the Gunn state that an officer found 14 individually wrapped packets of marijuana and one cellphone on a beam above Gunn's bed to which only he had access. Docs. [7-1] [7-2]. Gunn completed the Administrative Remedy Program ("ARP"), but was denied relief. Doc.  at 7-8; Docs. [7-1] [7-2] [7-3] [7-4] [7-5] [7-6].
On August 27, 2012, Gunn filed a complaint pursuant to 42 U.S.C. § 1983 in this Court, challenging the RVRs. See Gunn v. Epps, No. 3:12-cv-601-CWR-LRA (S.D.Miss. Jan. 13, 2013). The case was ultimately dismissed as frivolous and for failure to state a claim.
Following the dismissal of his § 1983 lawsuit, the Petitioner filed the instant habeas petition. E.L. Sparkman, the Respondent in this matter, filed a motion to dismiss  the petition on April 19, 2013. The Respondent argues that the grounds raised in the petition have never been raised in the highest state court and, therefore, are barred from federal review. In response to the motion, Gunn challenges the RVRs written against him by contending that they are not supported by substantial evidence. Doc. . He does not respond to the failure to exhaust argument.
The petition and motion have been fully briefed by the parties, and this matter is ripe for a ruling.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") and case law interpreting it provide the standards under which the petition must be evaluated. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (stating that the AEDPA applies to federal habeas corpus petitions filed on or after April 24, 1996). As a preliminary matter, applicants must exhaust all state remedies before seeking federal habeas relief. Title 28 U.S.C. § 2254 provides, in relevant part, that:
(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 ...