United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK, District Judge.
This matter comes before the court on the pro se petition of Stanley Montgomery for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition for failure to exhaust state remedies. The petitioner has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the State's motion to dismiss will be granted and the petition dismissed without prejudice for failure to exhaust state remedies.
Under 28 U.S.C. § 2254(b)(1), a prisoner seeking habeas corpus relief must first exhaust state remedies. Section 2254 provides, in relevant part:
(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 state 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 appellant
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
"A fundamental prerequisite to federal habeas relief under 28 U.S.C. § 2254 is the exhaustion of all claims in state court under § 2254(b)(1) prior to requesting federal collateral relief." Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995) (citing Rose v. Lundy, 455 U.S. 509 (1982)). A finding of exhaustion requires the petitioner to have "fairly presented the substance of his claims to the state courts." Sones v. Hargett, 61 F.3d 410, 414-15 (5th Cir. 1995) (citing Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983)). Further, exhaustion "requires that normally a state prisoner's entire federal habeas petition must be dismissed unless the prisoner's state remedies have been exhausted as to all claims raised in the federal petition." Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (citing Rose, 455 U.S. at 518-19). The exhaustion doctrine serves the salutary purpose of "giving the state courts the first opportunity to review the federal constitutional issues and to correct any errors made by the trial courts, [and thus] serves to minimize friction between our federal and state systems of justice.'" Satterwhite v. Lynaugh, 886 F.2d 90, 92 (5th Cir. 1989) (quoting Rose, at 518) (citations omitted).
Facts and Procedural Posture
On April 29, 2011, Stanley Montgomery entered a plea of guilty to five counts of identity theft in the Circuit Court of Winston County, Mississippi. Montgomery was sentenced to serve a term of five years on each count with the sentences in Counts II through V to run concurrently with the sentence imposed in Count I. The order further provided that Montgomery should be placed on post-release supervision for four years and fifty weeks after serving two weeks of his sentence. Montgomery was also ordered to pay restitution and court costs, with the first payment due within thirty days of his release from incarceration.
On August 13, 2013, the trial court modified the terms of Montgomery's post-release supervision and ordered that Montgomery be placed in a restitution center of the Mississippi Department of Corrections. A second Order of Modification of Post-Release Supervision was filed on September 12, 2013, again requiring petition to be placed in a restitution center. Montgomery signed a statement, which indicated he was voluntarily entering the restitution center, on that same date. Montgomery, at his own request, was expelled from the Hinds County Restitution Center. Thereafter, following a hearing, Montgomery's post-release supervision was revoked by Order filed December 23, 2013, and Montgomery was ordered to serve four years and fifty weeks in the custody of the Mississippi Department of Corrections.
Montgomery filed a motion for post-conviction relief in the Winston County Circuit Court on April 9, 2013, in Cause No. 2013-058-CV. Montgomery's motion was denied by Order filed July 19, 2013. The docket in Cause No. 2013-058-CV does not reflect that Montgomery appealed the trial court's decision denying post-conviction relief, ...