United States District Court, S.D. Mississippi, Southern Division
JEFFERY E. WILLIAMS, #184646 PETITIONER
MARSHALL FISHER RESPONDENT
ORDER ADOPTING MAGISTRATE JUDGE'S  REPORT AND
RECOMMENDATION, AND DISMISSING WITHOUT PREJUDICE PETITION FOR
WRIT OF HABEAS CORPUS FOR FAILURE TO EXHAUST
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge F.
Keith Ball, entered in this case on October 24, 2017. The
Magistrate Judge recommended that Petitioner Jeffery E.
Williams' Petition for Writ of Habeas Corpus be dismissed
without prejudice for Petitioner's failure to exhaust his
state court remedies. R. & R.  at 6. After due
consideration of the Report and Recommendation , the
record, and relevant legal authority, the Court finds that
the Magistrate Judge's Report and Recommendation 
should be adopted, and that Petitioner's Petition for
Writ of Habeas Corpus should be dismissed without prejudice
for failure to exhaust state remedies.
about May 31, 2013, Petitioner Jeffery E. Williams
(“Petitioner”) pleaded guilty in the Circuit
Court of Harrison County, Mississippi, Second Judicial
District (the “Circuit Court”), to two charges
contained in a multi-count Indictment, specifically (1)
touching a child for lustful purposes in violation of
Mississippi Code § 97-5-23(1), and (2) exploitation of a
child in violation of Mississippi Code § 97-5-33(5). R.
[18-1] at 46-53. Petitioner was sentenced to 15-year and
40-year terms of imprisonment on the two charges, to run
consecutively, for a total of 55 years to serve in the
custody of the Mississippi Department of Corrections
(“MDOC”). Id. at 55-56. Petitioner did
not file a direct appeal.
October 4, 2013, Petitioner filed a pro se Motion
for Post-Conviction Collateral Relief in the Circuit Court,
raising the following claims: (1) ineffective assistance of
counsel; (2) defective indictment; (3) cruel and unusual
punishment; and (4) “unusual circumstances, ”
relating to alleged judicial prejudice or bias. Id.
at 9-10. The Circuit Court denied the Motion on December 27,
2013. Id. at 132-140. The Circuit Court subsequently
granted Petitioner's request to file an out-of-time
appeal, R. [18-2] at 17-19, and Petitioner appealed, R.
[18-1] at 141. On November 21, 2014, Petitioner filed a
Motion to Voluntarily Dismiss his appeal, R. [18-4] at 6-7,
which the Mississippi Supreme Court granted on December 9,
2014, id. at 5.
February 25, 2015, Petitioner filed a second pro se
Motion for Post-Conviction Collateral Relief in the Circuit
Court, stating the following claims: (1) ineffective
assistance of counsel; (2) defective indictment; (3)
prosecution on improper indictment; (4) failure to hold
competency hearing; (5) lack of factual basis for guilty
plea; (6) failure to have grand jury correct indictment; (7)
allowing prosecution to bring out prior bad acts; (8)
conviction under purportedly faulty indictment; (9) guilty
plea was not entered into freely, knowingly, or
intelligently; (10) illegal search and seizure by police; and
(11) cumulative errors. R. [18-7] at 20-21. The Circuit Court
denied the second Motion on May 13, 2015. Id. at
68-91. Petitioner again appealed, R. [18-8] at 56, and on
April 21, 2016, the appeal was dismissed for Petitioner's
failure to file an appellant brief, R. [18-6] at 8.
22, 2016, Petitioner signed a Petition  under 28 U.S.C.
§ 2254 for writ of habeas corpus by a person in state
custody. Pet.  at 1-32. The Petition was filed in this
Court on June 30, 2016, and asserts the following grounds for
relief: (1) ineffective assistance of counsel; (2) defective
indictment(s); (3) cruel and unusual punishment; (4) alleged
prejudice by sentencing judge; (5) lack of competency
hearing; (6) no factual basis for plea; (7) failure to
correct indictment(s); (8) allowing prosecution to bring out
prior bad acts; (9) illegal search and seizure; and (10)
guilty plea was not freely, knowingly, and intelligently
made. Id. at 6-26; see also Pet.  at 2
(page 6 of Petition which was not included with original
filing). On October 3, 2016, Respondent Marshall Fisher
(“Respondent”) filed an Answer , arguing that
Petitioner's claims had not been presented to the State
of Mississippi's highest court in a procedurally proper
manner, such that Petitioner had failed to exhaust his state
court remedies. Ans.  at 5.
October 24, 2017, the Magistrate Judge entered a Report and
Recommendation  that the Petition be dismissed without
prejudice for failure to exhaust state remedies. A copy of
the Report and Recommendation  was mailed to Petitioner
at his address of record on October 24, 2017. Petitioner has
not filed any objections to the Report and Recommendation,
and the time for doing so has passed.
no party has objected to a magistrate judge's report and
recommendation, the Court need not conduct a de novo review
of it. 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.”). In such cases, the Court
applies the “clearly erroneous, abuse of discretion and
contrary to law” standard of review. United States
v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an abuse of discretion or contrary to law.
See id.; see also, e.g., Smith v.
Quarterman, 515 F.3d 392, 402 (5th Cir. 2008)
(“The exhaustion of state remedies, codified in §
2254(b)(1), requires a petitioner to provide the highest
court of the state a fair opportunity to apply the
controlling federal constitutional principles to the same