United States District Court, Southern District of Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING PETITIONER BRIAN DAVID BRADSHAW’S PETITION FOR HABEAS CORPUS RELIEF
HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
This matter is before the Court, sua sponte, for consideration of dismissal. Petitioner Brian David Bradshaw (“Petitioner”), an inmate of the Mississippi Department of Corrections (MDOC), has filed this pro se Petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Court, having liberally construed the pleadings in consideration with the applicable law, finds that this case should be dismissed.
Petitioner was convicted of murder in the Circuit Court of Harrison County, Mississippi, on April 5, 2012. Pet.  at 1. Petitioner asserts as grounds for habeas relief the following:
GROUND ONE: Whether the trial court erred when it failed to grant Bradshaw’s Motion for new trial on the grounds the verdict was against the overwhelming weight of the evidence.
GROUND TWO: Whether the trial court improperly suppressed evidence of Johnston’s Toxicology report.
GROUND THREE: Whether the trial court erred in granting S-12 which was improper statement of the law and in doing so deprived Bradshaw of his opportunity to assert his theory of defense.
GROUND FOUR: Whether Bradshaw was prejudiced by the jurors witnessing him [dressed] in a red jail outfit and shackles and chains on the second day.
GROUND FIVE: Whether Petitioner was deprived of effective assistance of counsel.
Id. at 5-11. Petitioner is requesting “an evidentiary hearing at the very least and to determine Bradshaw’s claims on the merits.” Id. at 15.
As required by Haines v. Kerner, the Court has liberally construed Petitioner’s allegations and determined that this Petition for habeas relief should be dismissed for Petitioner’s failure to exhaust his state remedies. See 404 U.S. 519, 520-21 (1972). Pursuant to 28 U.S.C. § 2254(b)(1), “a defendant must exhaust all claims in state court prior to requesting federal collateral relief.” Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008) (citing Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001)). In order to satisfy the exhaustion requirement, the claim must have been fairly presented to the highest state court. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004) (citing Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999)). As a general matter, a habeas petition will be dismissed when the petitioner has not exhausted his claims in state court. See Smith, 515 F.3d at 400 (citing 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 519-20 (1982)).
The Petition  states that “Bradshaw will continue exhausting state remedies but wanted to assert his 28 U.S.C. § 2254 before the one (1) year from direct appeal ended.” Petitioner further acknowledges in his Petition , in his Response  and in his letter  that he has pending before the Mississippi Supreme Court a motion for leave to proceed with his post-conviction relief motion in the trial court. See Bradshaw v. State, No. 2014-M-01823 (Miss. filed Dec. 29, 2014). Based on the pending motion for leave to proceed in the state trial court, the Court finds that Petitioner has not completed the exhaustion of his state remedies. As such, the Petition will be dismissed without prejudice for Petitioner’s failure to exhaust his available state remedies. See Sam v. Louisiana, 409 F. App’x 758, 763 (5th Cir. 2011) (stating that “[a] federal district court may not adjudicate a habeas petition unless all claims in the petition are exhausted”) (citing Rhines v. Weber, 544 U.S. 269, 274 (2005)).
Petitioner’s statement that he “wanted to assert his 28 U.S.C. § 2254 before the one (1) year from direct appeal ended” will be construed as a request that this habeas matter be held in abeyance until the Mississippi Supreme Court reaches a decision. Pet. 3 . The Court has the authority to stay a habeas petition and hold it in abeyance while the appellate courts of Mississippi resolve a pending motion. See Rhines, 544 U.S. at 276 (2005). The United States Supreme Court has determined that stay and abeyance is only appropriate when three requirements are satisfied: (1) there is good cause for the petitioner’s failure to exhaust his claims first in state ...