United States District Court, N.D. Mississippi, Aberdeen Division
NEAL B. BIGGERS, District Judge.
This matter comes before the court on the pro se petition of James Curry, Jr. for a writ of habeas corpus under 28 U.S.C. § 2254. The State has responded to the petition; Curry has replied, and the parties have supplied additional briefing. The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus will be dismissed under the doctrine of procedural default.
Facts and Procedural Posture
James Curry, Jr. is in the custody of the Mississippi Department of Corrections and currently housed as the Mississippi State Penitentiary in Parchman, Mississippi. He is serving sentences for convictions out of both Lee and Monroe County Circuit Courts. In the instant case, however, Curry challenges only his Lee County sentence. In his petition, Curry references two convictions: Lee County Circuit Court Cause Numbers CR09-591 and CR08-348. The Lee County kidnapping charge in No. CR09-591 was retired to the files on October 31, 2012. Curry was not convicted in that case; as such, there is nothing to be challenged on federal habeas corpus review.
On October 31, 2012, Curry also pled guilty to "possession of cocaine greater than 0.1 gram but less than 2 grams" in Count I of Cause No. CR08-348 - and was sentenced to a term of eight years in the custody of the Mississippi Department of Corrections, to run concurrently with his sentence in Monroe County Cause No. CR06-040. That same day, Count II of Cause No. CR08-348 was retired to the files.
On January 29, 2013, Curry filed a petition for post-conviction collateral relief in Lee County Circuit Court Cause No. CV13-029, challenging his plea and sentence in Count I of Cause No. CR-08-348. On March 7, 2013, the Lee County Circuit Court denied Curry's petition. Curry did not file a notice of appeal of the denial of post-conviction collateral relief in Cause No. CV13-029.
On August 7, 2013, Curry filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his Lee County plea and sentence in Cause No. CR08-348, raising the following grounds for relief (as summarized by the court):
Ground One: Curry was denied ineffective assistance of counsel.
Ground Two: Lee County did not seek Curry to be returned from custody on other charges to face the Lee County charges.
Ground Three: Curry's right to a speedy trial was violated.
Ground Four: Curry was denied a psychological evaluation by his own doctor rather than a court appointed doctor.
ECF doc. 1.
The Doctrine of Procedural Default
If an inmate seeking habeas corpus relief fails to exhaust an issue in state court - and no more avenues exist to do so - under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). A petitioner may, however, overcome the procedural default by showing cause for it - and actual prejudice from its application. To show cause, a petitioner must prove that an external impediment (one that could not be attributed to him) existed to prevent him from raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5th Cir. 1993). To establish prejudice, a petitioner must show that, but for the alleged error, the outcome of the proceeding would have been different. Pickney v. Cain, 337 F.3d 542 (5th Cir. 2003). Even if a petitioner fails to establish cause for his default and prejudice from its application, he may still overcome a procedural default by showing that application of the default would result in a fundamental miscarriage of justice. To show that such a miscarriage of justice would occur, a petitioner must prove that, "as a factual matter, that he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) ...