United States District Court, S.D. Mississippi, Southern Division
OPINION AND ORDER OVERRULING PETITIONER'S OBJECTIONS
, ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION , GRANTING RESPONDENT'S MOTION  TO
DISMISS, DENYING PETITIONER'S MOTION  FOR SUMMARY
JUDGMENT AND MOTION  TO DISMISS, AND DISMISSING WITHOUT
PREJUDICE THE PETITION  FOR HABEAS CORPUS RELIEF
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Henry Joseph
Laneri, III's Objections  to the Report and
Recommendation  of United States Magistrate Judge Michael
T. Parker, entered in this case on April 25, 2017. The
Magistrate Judge recommended that the Court grant the Motion
 to Dismiss filed by Commissioner Fisher
(“Respondent”), deny Petitioner Henry Joseph
Laneri's (“Petitioner”) Motion  for
Summary Judgment and Motion  to Dismiss, and dismiss
without prejudice Petitioner's Petition Under 28 U.S.C.
§2254 for Writ of Habeas Corpus  on grounds that
Petitioner failed to exhaust State remedies before filing
suit in federal court, as required by 28 U.S.C. § 2254
(b) - (c). R. & R. , at 3-5.
considered the Report and Recommendation and having conducted
a de novo review of those portions to which Petitioner
objects, the Court finds that Petitioner's Objections
 should be overruled, and the Report and Recommendation
 should be adopted as the finding of the Court.
Accordingly, the Court will grant Respondent's Motion 
to Dismiss and deny Petitioner's Motion  for Summary
Judgment and Motion  to Dismiss. The Petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254 will be
dismissed without prejudice for failure to exhaust State
court remedies. R. & R.  at 3-5.
Petition , Petitioner asks the Court to review the
“unconst[itutional] ‘Revocation Sentence
Order'” entered by the Circuit Court of Pearl River
County, Mississippi, while acknowledging that he did not
exhaust his “state remedies” because it was his
understanding that the Order was not appealable under
Mississippi law. Pet.  at 1, 3, 5; Order of Revocation of
Post Release [1-4] at 1.
November 10, 2016, Respondent filed a Motion  to Dismiss
arguing that Petitioner did have a State law remedy under
“the Mississippi Uniform Post-Conviction Collateral
Relief Act, Mississippi Code Annotated, §§ 99-39-1,
et seq.” Mot. to Dismiss  at 3-4.
about January 25, 2017, Petitioner instituted an action in
the Circuit Court of Pearl River County, Mississippi, seeking
post-conviction relief. Suppl. Resp. in Opp'n [21-2] at
1-14. The Circuit Court of Pearl River County, Mississippi,
dismissed the case, and Petitioner appealed that decision to
the Mississippi Supreme Court. Petitioner's appeal is
docketed as 2017-TS-00407-COA. Reply  at 1-3.
April 25, 2017, the Magistrate Judge entered his Report and
Recommendation  finding that because Petitioner's
“post-conviction relief appeal” was still pending
in State court: (1) Respondent's Motion to Dismiss 
should be granted; (2) Petitioner's Motion  for
Summary Judgment should be denied; (3) Petitioner's
Motion  to Dismiss Respondent's Motion to Dismiss
should be denied; and (4) the Petition  should be
dismissed without prejudice. R. & R.  at 3-5.
filed his Objections  to the Report and Recommendation on
May 5, 2017, asserting, in pertinent part, that to the best
of his “Pro Se knowledge” his State court appeal
had been dismissed such that he had exhausted his State court
remedies. Obj.  at 3-4.
Standard of Review
Petitioner has filed Objections  to the Magistrate's
Report and Recommendation , this Court is required to
make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made. Koetting v. Thompson, 995 F.2d
37, 40 (5th Cir. 1993) (citing 28 U.S.C. § 636(b)(1)).
However, the district court need not “reiterate the
findings and conclusions of the magistrate judge.”
Id. Nor must it consider “[f]rivolous,
conclusive or general objections.” Battle v. U.S.
Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
With respect to those portions of the Report and
Recommendation to which Petitioner did not file objections,
the Court reviews those findings under a clearly erroneous or
contrary to law standard. See United States v.
Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
reviewing Petitioner's Objections , the Court is
mindful that Congress, through the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2241, et seq., has restricted federal court
review of habeas petitions filed on behalf of persons in
State custody. White v. Thaler, ...