United States District Court, S.D. Mississippi, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATIONS
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT are three (3) interrelated matters: the
respondent's Motion to Dismiss [Docket no.
15]; the Report and Recommendation of the United
States Magistrate Judge Linda Anderson for acceptance, or
rejection or modification [Docket no. 18];
and the Petitioner's Motion to Dismiss [Docket
petitioner's petition for a writ of habeas corpus, filed
under the authority of Title 28 U.S.C. §
2241[1" name="FN1" id=
"FN1">1], asks this court to order the State of
Mississippi to release him from pretrial confinement in the
Lauderdale County Jail, in Lauderdale County, Mississippi;
or, alternatively, to dismiss the criminal charges pending
against him. The petitioner in this matter is acting pro
se.“A document filed pro se is
‘to be liberally construed, ' Estelle v.
Gamble, 429 U.S. 97, 106 (1976) and ‘a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers, ' ibid. (internal quotation marks omitted). Cf.
Fed. Rule Civ. Proc. 8(f) (‘All pleadings shall be so
construed as to do substantial justice').”
Erickson v. Pardus, 1 U.S. 89');">551 U.S. 89, 94, 127 S.Ct. 2197');">127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007). “Despite our general
willingness to construe pro se filings liberally, we
still require pro se parties to fundamentally
‘abide by the rules that govern the federal
courts.'” E.E.O.C. v. Simbaki, Ltd., 767
F.3d 475, 484 (5th Cir. 2014), as revised (Sept. 18,
2014)(citing Frazier v. Wells Fargo Bank, N.A., 541
Fed.Appx. 419, 421 (5th Cir.2013)).
State of Mississippi arrested the petitioner for murder and
forcible rape. The Lauderdale County Circuit Court proceeded
against the petitioner on the forcible rape charge and, as
stated below, ultimately dismissed the forcible rape. The
State of Mississippi, however, is still seemingly
investigating the murder charge. The petitioner alleges that
the State of Mississippi also charged him with human
trafficking, presumably in violation of Miss. Code Ann.
§ 97-3-54.1. [Docket no. 1, P. 5].
Report and Recommendation, filed on August 21, 2017,
Magistrate Judge Linda Anderson found that the
respondent's Motion to Dismiss [Docket no.
15] was due to be granted because the underlying
charges that the petitioner is challenging in this lawsuit
sub judice were still pending in the Circuit Court
of Lauderdale County, Mississippi, that clearly petitioner
was attempting to derail state criminal charges before the
State could act on the charges in the state criminal court
(see Braden v. 30th Judicial Cir. Ct. of
Ky., 10 U.S. 484');">410 U.S. 484, 488-89 (1973)); and that petitioner
had not exhausted state remedies (see Brown v.
Estelle 1280');">530 F.2d 1280, 1283 (5th Cir. 1976)).
Further, found the Magistrate Judge, although the petitioner
raised speedy trial concerns, the State of Mississippi had
stated its plans to proceed immediately on the
petitioner's trial setting. Magistrate Judge Anderson
further directed the pro se prisoner plaintiff to
submit within fourteen (14) days any objections to the Report
and Recommendation. The petitioner did not file formal
objections to the Magistrate Judge's Report and
Recommendation; instead, he filed his Motion to Dismiss
[Docket no. 19] which this court construed,
as explained infra, as an objection to the
Magistrate Judge's Report and Recommendation.
Magistrate Judge Anderson filed her Report and
Recommendation, the State of Mississippi nolle
prossed the petitioner's forcible rape charge.
Seven (7) days later, Lauderdale County Justice Court Judge
Gerald Thompson signed an order releasing the petitioner on a
recognizance bond for the murder charge under which the
petitioner still suffers.
petitioner's Motion to Dismiss [Docket no.
19] does not ask this court to dismiss his lawsuit;
rather, it asks this court to dismiss the State of
Mississippi's charge of forcible rape against him. This
court, therefore, will construe the petitioner's Motion
to Dismiss [Docket no. 19] as his notice of
opposition to the Report and Recommendation of Magistrate
Judge Anderson [Docket no. 18]. Still, the
petitioner's forcible rape charge has been nolle
to petitioner's speedy trial concerns, as stated above,
the forcible rape charge has been nolle prossed and
petitioner has been released from confinement on a
court thus finds that this case should be dismissed as this
court ADOPTS the Report and Recommendation
of the Magistrate Judge [Docket no. 18]. The
State of Mississippi has nolle prossed the forcible
rape charge against the petitioner and released him on
recognizance on the murder charge. Further, this court is
persuaded, as was Magistrate Judge, that the instant petition
fails to state a claim upon which habeas relief may be
granted where it attempts to derail a state court criminal
proceeding and because the petitioner failed to exhaust his
court thus GRANTS the Motion to Dismiss
filed by the Respondent. [Docket no. 15].
The Respondent's motion is in lockstep with the Report
and Recommendation of the United State Magistrate Judge.
court hereby DENIES petitioner's Motion
to Dismiss. [Docket no. 19].
this court commensurately DISMISSES this
lawsuit in its entirety WITHOUT PREJUDICE.
The parties are to bear their own costs. His motion attacks
the State's evidence against him and requests a dismissal
of the forcible rape charge. As stated herein, that charge
has been nolle prossed. He mentions speedy trial
concerns, but he is now free on a recognizance bond.
order adverse to the petitioner having been filed in the
captioned habeas corpus case, in which the detention
complained of arises out of process issued by a state court
or a proceeding pursuant to Title 28 U.S.C. § 2241, the
court, considering the record in the case and the
requirements of 28 U.S.C. § 2253, Rule 22(b) of the
Federal Rules of Appellate Procedure, and Rule 11(a) of the
Rules Governing Section 2241 Cases in the United States
District Courts, hereby finds that:
Certificate of Appealability should not issue. The applicant
has failed to make a substantial showing of ...