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Weaver v. Mississippi Department of Corrections

United States District Court, N.D. Mississippi, Greenville Division

September 19, 2017

LARRY RAY WEAVER PETITIONER
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS; JASMINE TAYLA; KEVIN JACKSON; WARDEN ARTHUR L. SMITH; and GLORIA ALEXANDER RESPONDENTS

          MEMORANDUM OPINION AND ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is Larry Ray Weaver's pro se action, which this Court construes as a petition for a writ of habeas corpus. Doc. #1.

         I Procedural History

         A. Initial State Court Proceedings

         Larry 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.

         In 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.[1] 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.

         B. This Action and State Court Exhaustion

         On or 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.

         On November 14, 2016, the DeSoto County Circuit Court denied Weaver's “Motion for Correct Sentence.”[2] Doc. #7-4; Doc. #12-4.

         Two 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.

         On 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.

         On 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.

         On May 9, 2017, Judge Sanders entered an order stating in relevant part:

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 ...

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