United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK U.S. DISTRICT JUDGE.
matter comes before the court on the pro se petition
of James Lester Forside 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 court remedies. The
petitioner has not responded to the motion; the deadline to
do so has expired, and the matter is ripe for resolution. For
the reasons set forth below, the State's motion will be
granted, and the instant petition for a writ of habeas
corpus will be dismissed without prejudice for failure
to exhaust state remedies.
and Procedural Posture
Forside is in the custody of the Mississippi Department of
Corrections and is currently housed at the Bolivar County
Correctional Facility in Cleveland, Mississippi. He pled
guilty in the Circuit Court of Oktibbeha County to one count
of burglary of a building. On April 28, 2015, the circuit
court sentenced him as a habitual offender under Mississippi
Code Annotated Section 99-19-81 to a term of seven years in
the custody of the Mississippi Department of Corrections.
filed a motion for post-conviction collateral relief (PCR) in
the Oktibbeha County Circuit Court, which was dismissed on
August 7, 2015. See Exhibit B (Docket, First
PCR motion, and Order of Dismissal in Oktibbeha County
Circuit Court Cause No. 2005-0481-CVC). Rather than appealing
the dismissal of the PCR motion to the Mississippi Supreme
Court, Forside filed a successive PCR motion in the Oktibbeha
County Circuit Court, which was dismissed on the merits on
November 9, 2015. See Exhibit C (Second PCR motion
and Order of Dismissal in Oktibbeha County Circuit Court
Cause No. 2005-0481-CVC). Again, rather than appealing the
dismissal of the second PCR motion to the Mississippi Supreme
Court, Forside filed two (2) more PCR motions in the
Oktibbeha County Circuit Court. See Exhibit D (Third
PCR motion in Oktibbeha County Circuit Court Cause No.
2005-0481-CVC); Exhibit E (Fourth PCR motion in Oktibbeha
County Circuit Court Cause No. 2005-0481-CVC). Oktibbeha
County Circuit Court Clerk's records reflect that these
pleadings are currently pending in that court. See
Exhibit B. The records of the Mississippi Supreme Court
Clerk's Office show no appeal filed by Forside at this
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
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).
instant petition for a writ of habeas corpus,
Forside challenges the circumstances surrounding his plea of
guilty. He has not, however, exhausted those claims by giving
the Mississippi Supreme Court the opportunity to review them.
Once the Circuit Court rules on Forside's pending
motions, he may appeal any adverse rulings to the ...