United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
M. BROWN, UNITED STATES DISTRICT JUDGE
the Court is Larry Ray Weaver's pro se action, which this
Court construes as a petition for a writ of habeas corpus.
Initial State Court Proceedings
Weaver pleaded guilty to identity theft in the Circuit Court
of DeSoto County, Mississippi, and was sentenced by order
filed November 30, 2015, to serve a term of ten years in the
custody of the Mississippi Department of Corrections, with
five years of post-release supervision. Doc. #13-1 at 18-21.
At the time of this sentencing, Weaver was under an Arkansas
120-month probation sentence for burglary. Id. at
18, 28; see also Doc. #1 at 17-19. The Mississippi
sentencing order provided that Weaver's Mississippi
sentence was to run concurrent to the sentence he “is
currently serving in Arkansas.” Doc. #13-1 at 18.
March 2016, Weaver filed a “Motion for Correct
Sentence” in the DeSoto County Circuit Court that was
treated as a motion for post-conviction relief and was denied
on June 20, 2016. Doc. #13-1 at 45-48, 50-52. In August
2016, Weaver filed in the DeSoto County Circuit Court a
“Motion to Consider Suspending Remainder of
Sentence.” Doc. #7-1; Doc. #12-1. At approximately the
same time, Weaver filed with the Mississippi Supreme Court a
“Motion for Correct Sentence, ” which challenged
the sentence imposed by the DeSoto County Circuit Court. Doc.
#13-1 at 2-11.
This Action and State Court Exhaustion
about November 8, 2016, Weaver filed in this Court a
“Prisoner's Complaint Challenging Conditions of
Confinement” and a motion to proceed in forma pauperis.
Doc. #1; Doc. #2. In his complaint, Weaver seeks an order
“[t]o do what my sentence order and the Darin Vance
(Attorney) and Angela M. Huck (District Attorney) Promise.
Let me go to Arkansas.” Doc. #1 at 5.
November 14, 2016, the DeSoto County Circuit Court denied
Weaver's “Motion for Correct
Sentence.” Doc. #7-4; Doc. #12-4.
days later, on November 16, 2016, United States Magistrate
Judge David A. Sanders issued an order in this action which:
(1) granted Weaver's motion to proceed in forma pauperis;
(2) construed Weaver's complaint as a petition; and (3)
directed the respondents to answer the petition. Doc. #4.
January 10, 2017, the respondents filed a motion to dismiss
Weaver's petition for failure to exhaust on the ground
that he had a pending motion with the Mississippi Supreme
Court. Doc. #7. However, on February 1, 2017, while the
respondents' motion was pending, the Mississippi Supreme
Court denied Weaver's motion. Doc. #13-1 at 1.
February 13, 2017, Judge Sanders, citing the February 1,
2017, order, directed the respondents to “either file
an answer to the instant petition or amend the pending motion
to dismiss.” Doc. #9. The respondents filed their
answer on May 3, 2017. Doc. #12.
9, 2017, Judge Sanders entered an order stating in relevant
The Court intends to construe Weaver's pleading as a
federal habeas petition. Because an unsuccessful first
§2254 motion could prevent Weaver from seeking further
review of his Mississippi conviction and/or sentence, Weaver
will be allowed an opportunity to withdraw his motion or
amend his pleading, if he desires to do so. Therefore, it is
ORDERED that within twenty-one (21) days of
this order, Weaver must notify the Court whether ...