United States District Court, S.D. Mississippi, Northern Division
TRAVON R. RHODES, Plaintiff,
CAPTAIN DON SMITH, Defendant.
REPORT AND RECOMMENDATION
F. KEITH BALL, Magistrate Judge.
This cause is before the undersigned for a report and recommendation as to the Motion to Dismiss for Failure to Exhaust filed by Defendant . For the following reasons, the undersigned recommends that the motion be granted and that Plaintiff's Petition for Writ of Habeas Corpus  be dismissed without prejudice.
Plaintiff pleaded guilty in the Circuit Court of Madison County, Mississippi, to sale of hydrocodone with acetaminophen (Count I) and sale of a counterfeit substance (Count II) in Cause No. 2013-0439, as well as sale of cocaine (Count I) and another charge of sale of hydrocodone with acetaminophen (Count II) in Cause No. 2013-0440. On December 9, 2013, the Madison County Circuit Court sentenced Plaintiff to twelve years on Count I and five years on Count II in Cause No. 2013-0439, with the sentences to be run concurrently with each other. [16-1]. In Cause No. 2013-0440, the Madison County Circuit Court imposed a twenty-year, suspended sentence on each count, Counts I and II, to be run concurrently with each other and consecutively with the sentences in Cause No. 2013-0439. Id. The state court also sentenced Plaintiff to five years post-release supervision. Id.
Although Plaintiff claims that he sought post-conviction relief in state court , Defendant contends that there is no record of his having filed such a petition in state court.  at 4. Plaintiff failed to respond to Defendant's Motion to Dismiss for Failure to Exhaust  and presented no support for his claim that he has filed a post-conviction relief petition in state court.
Plaintiff now seeks federal habeas relief and in his initial petition stated the following grounds for relief:
GROUND ONE: I was set-up, and I only sold to him 2 times after he called me.
GROUND TWO: They charged me 4 times instead of 2.
. A third ground for relief is illegible. Id. at 8. Plaintiff later clarified his claims, asserting that he was wrongfully convicted because law enforcement utilized a confidential informant they were not permitted to use. . Plaintiff also claims that he received ineffective assistance of counsel. Id.
Applicants seeking federal habeas relief under Section 2254 are required to exhaust all claims in state court prior to requesting federal collateral relief. Rose v. Lundy, 455 U.S. 509, 515 (1982). Section 2254(b)(1) provides in pertinent 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 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 applicant.
(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, ...