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Foxx v. State

United States District Court, Northern District of Mississippi, Greenville Division

March 24, 2015

CARLOS DEWAYNE FOXX, PETITIONER
v.
STATE OF MISSISSIPPI, RESPONDENT

MEMORANDUM OPINION AND ORDER

DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

Before the Court is the pro se petition of Carlos Dewayne Foxx for a writ of habeas corpus under 28 U.S.C. § 2254. After the State responded to the petition, Foxx moved to dismiss the petition without prejudice, and the State has responded to that motion. For the reasons below, the Court dismisses Foxx’s petition for a writ of habeas corpus and denies Foxx’s motion to dismiss.

I Facts and Procedural Posture

Carlos Dewayne Foxx is in the custody of the Mississippi Department of Corrections and is currently housed at the East Mississippi Correctional Facility in Meridian, Mississippi. He pled guilty to two counts of attempted armed robbery, one count of armed robbery, and one count of manslaughter in the Circuit Court of Coahoma County, Mississippi. The circuit court imposed a sentence of twenty years on each count, to be served concurrently. Foxx filed a motion for post-conviction collateral relief in Coahoma County Circuit Court, raising the following grounds for relief, pro se:

I. Self incrimination 5th amendment provides that no person shall be compelled in any criminal case to be a witness against himself.
II. Due process 5th amendment to challenge unnecessary procedures that occur at noncritical stages. Identification that results from unnecessarily suggestive procedures that may lead to an irreparably mistaken identity.
III. Due process 5th amendment involuntary confessions - confrontation of the accused with other evidence of guilt. Evidence obtained by means of physical coercion. Promises of leniency or psychiatric treatment.
IV. 6th amendment assistance of counsel that presence of counsel may guard against suggestive procedures and challenge procedures that may lead to an innocent person.
V . Double jeopardy 5th amendment charging offense in different counts, such indictments may result in multiple offense of sentencing for a single offense.

The circuit court denied Foxx's petition, finding that, under Miss. Code Ann. § 99-39-21(1), he was “barred from raising the issues that he failed to raise during his plea hearing.” Foxx concedes that he never appealed the circuit court’s denial of his post-conviction motion to the Mississippi Supreme Court. See Doc. #1 at 7. Further, the Mississippi Supreme Court docket, as available on the court’s website, does not reflect that Foxx has filed any pleadings there.

Foxx filed an earlier petition for a writ of habeas corpus in this Court in Cause No. 4:13-cv-109-MPM-SAA. In that petition, Foxx challenged the same convictions and sentences at issue in the instant case. On May 22, 2014, the Court dismissed Foxx's petition in Cause No. 4:13-cv-109-MPM-SAA for failure to exhaust state remedies.

In the instant petition for a writ of habeas corpus, Foxx raises the following grounds for relief, pro se:

Ground One: Self incrimination 5th Amendment. No person shall be compelled in any criminal case to be ...

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