United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.
THE COURT is the Motion to Dismiss Petition for Writ of
Habeas Corpus for Failure to Exhaust (ECF No. 13) filed by
Respondent Pelicia Hall. The Motion seeks dismissal of
Richard Daniel Sullivan's Petition for Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2254, based on
Petitioner's failure to first exhaust his claims in state
court. Following the issuance of an Order to Show Cause (ECF
No. 15), Petitioner filed a Response (ECF No. 17), which
reargues the merits of the claims in his Petition, but does
not address the arguments in Respondent's Motion. Having
considered the submissions of the parties, the record, and
relevant legal authority, the undersigned recommends that
Respondent's Motion to Dismiss (ECF No. 13) be granted
and that the Petition be dismissed for Petitioner's
failure to first exhaust his claims in state court.
Richard Daniel Sullivan pleaded guilty to two counts of
non-residential burglary in the Second Judicial District of
the Circuit Court of Harrison County, Mississippi on August
8, 2016. See Resp. Mot. to Dismiss, Ex. A (ECF No.
13-1). He was sentenced to concurrent terms of seven years in
the custody of the Mississippi Department of Corrections
(“MDOC”), with three suspended and four to
serve. Id. On April 28, 2017, Sullivan
filed his Petition for Writ of Habeas Corpus (ECF No. 1),
pursuant to 28 U.S.C. § 2254, in this court. At the
Court's direction, he supplemented his Petition on June
7, 2017. See Amend. Pet. (ECF No. 9). His Amended
Petition raises three grounds for relief.
One: Petitioner was denied due process because he was
arrested without a warrant and detained for five days before
appearing before a judge.
Two: Petitioner was subjected to double jeopardy because he
was indicted twice on the same charges - once in November
2015 and, again, in April 2016.
Three: Petitioner was provided with ineffective assistance of
counsel because his attorney, Charlie Stewart, (1) did not
file any motions on his behalf, (2) told Petitioner that he
could be indicted twice for the same offense, and (3) told
Petitioner that no right to a speedy trial exists in
Mississippi. Amend. Pet. (ECF No. 9, at 5-8).
28, 2017, Respondent Pelicia Hall filed the instant Motion to
Dismiss (ECF No. 13), which argues that the Petition should
be dismissed because Sullivan failed to exhaust his claims
through available state court remedies. Respondent maintains
that “Sullivan has not filed an[sic] motions for post-
conviction relief since the entry of his guilty plea
challenging the convictions and sentences at issue in the
instant petition.” Mot. to Dismiss (ECF No. 13, at 3).
Sullivan's Response (ECF No. 17) does not address the
arguments in Respondent's Motion, but he affirmatively
asserts in his Amended Petition that he exhausted his claims
by having filed a “pre-conviction” Petition for
Writ of Habeas Corpus in state court on October 25, 2015.
Amend. Pet. (ECF No. 9, at 5, 9).
Sullivan's own telling of the procedural history behind
his claims, he was arrested by the Jackson County
Sheriff's Department on June 17, 2015, he “filed a
habeas corpus in preconviction in this case on October 25,
2015, ” and he was convicted of the charges for which
he was arrested on August 8, 2016. Amend. Pet. (ECF No. 9, at
1, 5). Exhibits attached to Respondent's Motion to
Dismiss - which include the Petition for Habeas Corpus in
Preconviction (ECF No. 13-3) filed in state court, the
Circuit Court of Harrison County, Mississippi's order
denying that petition (ECF No. 13-4), and the Mississippi
Supreme Court's orders dismissing the appeal of the
Circuit's order initially (ECF No. 13-5) and again on
motion for rehearing (ECF No. 13-6) - largely corroborate
filed his state court habeas corpus petition in the Circuit
Court of Harrison County, Mississippi on October 19, 2015.
See State Court Pet. (ECF No. 13-3). In his state
court petition, Sullivan argued that his detention was
unlawful under the Fourteenth Amendment to the United States
Constitution because (1) he was arrested without a warrant,
(2) the state had not established probable cause to arrest
him (3) he was not Mirandized when arrested, (4) he waited
five days for his initial appearance, (5) “statements
made at the end of preliminary hearing, ” (6) his
court-appointed attorney was providing ineffective assistance
of counsel, and (7) the State's allegations against him
did not establish all essential elements of the crimes with
which was charged. Id. at 2.
Circuit Court issued an Order on May 27, 2016 denying
Sullivan's habeas corpus petition. Cir. Court Order (ECF
No. 13-4). The court noted that Sullivan was arrested on June
11, 2015, released on bond the next day, and again arrested
on June 17, 2015. Id. at 1. Although each arrest
resulted in a separate indictment on five counts of burglary,
neither indictment existed at the time Sullivan filed his
habeas corpus petition on October 19, 2015. Id.
However, Sullivan was not released on bond following his
second arrest “due to the arresting authority's
knowledge of an existing hold by the Jackson County,
Mississippi Sheriff's Department.” Id.
Sullivan says that he was indicted first in November 2015 and
then again in April 2016. Amend. Pet. (ECF No. 9, at 7).
Circuit Court cited Mississippi Supreme Court law that
“[t]he petitioner in a habeas corpus cause may not use
it to challenge an indictment or have an indictment
dismissed; they may only request reasonable bail, ” and
dismissed Sullivan's petition because “the
allegations [as to why his arrest was unlawful] are not
properly raised in a habeas corpus petition post-arraignment
and post-indictment.” Cir. Court. Order (ECF No. 13-4,
at 2) (citing Street v. State, 43 Miss. 1, 30 (Miss.
1870); Smith v. Banks, 2012-CA-01850-SCT
(¶¶9-10), 134 So.3d 715, 719 (Miss. 2014)).
“Further, ” said the court, “Sullivan is
not entitled to bail due to the outstanding hold by another
appealed the Circuit Court's dismissal of his habeas
corpus petition to the Mississippi Supreme Court. The
Mississippi Supreme Court dismissed both his appeal and a
Petition for Writ of Mandamus that he had also apparently
filed, without discussion, on February 8, 2017. Miss. Sup.
Ct. Initial Order (ECF No. 13-5). Sullivan thereafter filed a
Motion for Rehearing, which the ...