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Sullivan v. State

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

January 10, 2018

RICHARD DANIEL SULLIVAN PETITIONER
v.
STATE OF MISSISSIPPI and PELICIA HALL RESPONDENTS

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.

         BEFORE 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.

         I. BACKGROUND

         Petitioner 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.[1] 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.

         Ground One: Petitioner was denied due process because he was arrested without a warrant and detained for five days before appearing before a judge.

         Ground 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.

         Ground 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).

         On June 28, 2017, Respondent Pelicia Hall[2] 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).

         By 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 this timeline.

         Sullivan 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.

         The 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).

         The 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 agency.” Id.

         Sullivan 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 ...


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