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Laneri v. Fisher

United States District Court, S.D. Mississippi, Southern Division

August 3, 2017

HENRY JOSEPH LANERI, III, #R0205 PETITIONER
v.
COMMISSIONER FISHER RESPONDENT

         MEMORANDUM OPINION AND ORDER OVERRULING PETITIONER'S OBJECTIONS [25], ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [24], GRANTING RESPONDENT'S MOTION [7] TO DISMISS, DENYING PETITIONER'S MOTION [9] FOR SUMMARY JUDGMENT AND MOTION [22] TO DISMISS, AND DISMISSING WITHOUT PREJUDICE THE PETITION [1] FOR HABEAS CORPUS RELIEF

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Petitioner Henry Joseph Laneri, III's Objections [25] to the Report and Recommendation [24] 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 [7] to Dismiss filed by Commissioner Fisher (“Respondent”), deny Petitioner Henry Joseph Laneri's (“Petitioner”) Motion [9] for Summary Judgment and Motion [22] to Dismiss, and dismiss without prejudice Petitioner's Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus [1] 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. [24], at 3-5.

         Having 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 [25] should be overruled, and the Report and Recommendation [24] should be adopted as the finding of the Court. Accordingly, the Court will grant Respondent's Motion [7] to Dismiss and deny Petitioner's Motion [9] for Summary Judgment and Motion [22] 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. [24] at 3-5.

         I. RELEVANT BACKGROUND

         In his Petition [1], 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. [1] at 1, 3, 5; Order of Revocation of Post Release [1-4] at 1.

         On November 10, 2016, Respondent filed a Motion [7] 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 [7] at 3-4.

         On or 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 [23] at 1-3.

         On April 25, 2017, the Magistrate Judge entered his Report and Recommendation [24] finding that because Petitioner's “post-conviction relief appeal” was still pending in State court: (1) Respondent's Motion to Dismiss [7] should be granted; (2) Petitioner's Motion [9] for Summary Judgment should be denied; (3) Petitioner's Motion [22] to Dismiss Respondent's Motion to Dismiss should be denied; and (4) the Petition [1] should be dismissed without prejudice. R. & R. [24] at 3-5.

         Petitioner filed his Objections [25] 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. [25] at 3-4.

         II. DISCUSSION

         A. Standard of Review

         Because Petitioner has filed Objections [25] to the Magistrate's Report and Recommendation [25], 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).

         In reviewing Petitioner's Objections [25], 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, ...


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