United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent Superintendent Ron
King's Motion to Dismiss , to which Petitioner Brenda
Ann Golden has responded , and Respondent King has filed
a rebuttal . Respondent argues that the petition, filed
pursuant to 28 U.S.C. § 2254, should be dismissed
because the challenge to her initial sentence is untimely,
or, alternatively, Golden has failed to exhaust state court
remedies. For the reasons explained below, the undersigned
recommends that the Motion to Dismiss be granted, and this
action be dismissed without prejudice.
AND PROCEDURAL HISTORY
action, Golden challenges the revocation of her post-release
supervision and the imposition of her suspended sentence on a
felony DUI conviction by the Circuit Court of Lauderdale
County, as well as the length of her initial sentence on the
felony DUI charge. More specifically, in ground one Golden
argues that the court's sentence for violation of her
post-release supervision is in excess of the 90 days allowed
by Mississippi Code Annotated § 47-7-37. In ground two
she argues that the court's seven-year sentence on her
December 2014 guilty plea to felony DUI exceeded the maximum
five-year sentence allowed by statute. When Golden filed this
action, she was in custody at the Central Mississippi
Correctional Facility, in Pearl, Mississippi. However, she
has since been released on parole. [13-1].
Petitioner pleaded guilty in the Circuit Court of Lauderdale
County, Criminal Cause No. 320-13, to a charge of felony DUI,
in violation of Mississippi Code Annotated § 63-11-30.
[13-2] at 1. According to the sentencing order, on December
15, 2014, the Circuit Court sentenced her to a term of five
(5) years in the custody of the Mississippi Department of
Corrections (“MDOC”) with three (3) years
suspended, and five (5) years of reporting post-release
supervision. Id. The Circuit Court also ordered her
to complete two (2) years under the intensive supervision
program (“ISP”) or Electronic Home Detention
program of the MDOC. Id.; Miss. Code Ann.
§§ 47-5-1001, et seq. In addition to
certain reporting conditions, the Court ordered Golden to pay
fines and assessments in the amount of $2, 493.50 in Cause
No. 320-13, and $1, 127.50 in assessments still owed in Cause
No. 263-95, for a total of $3, 621.00, at a monthly rate of
$68.00 per month. [13-2] at 2.
Court surmises that Golden was subsequently released on
post-release supervision, because on February 2, 2017, the
Circuit Court signed an order finding that Golden had
violated two conditions of her post-release supervision.
[13-4] at 1. Specifically, the court found that she had
failed to report for more than six consecutive months, from
July 2016 through January 2017, and that she had failed to
pay her fines and assessments. Consequently, it revoked her
post-release supervision, sentenced her to serve three years
in the custody of MDOC, and, once again, ordered her to pay
her fines and assessments. [13-4] at 1.
Golden filed a Motion for Post-Conviction Collateral Relief
on May 25, 2017, in the Circuit Court of Lauderdale County.
 at 16. According to the State's rebuttal, that action
remained pending as of March 22, 2018. See [15-1] at
1. The State also asserts that the Mississippi Supreme
Court's website confirms that Golden has not filed any
documents before that court as of March 22, 2018.
August 23, 2017, the Mississippi Parole Board granted her
parole, effective October 23, 2017. [13-1] at 1. In addition
to its standard conditions, the Board imposed special
conditions of GPS monitoring for six months and a prohibition
of alcoholic beverages. Id. at 2.
August 31, 2017, Golden signed her initial petition for
habeas corpus relief, filed in this Court pursuant to 28
U.S.C. § 2254.  at 15. The Court received her amended
petition on September 22, 2017. . In subsequent
correspondence to the Court, Golden has complained of the GPS
monitoring system and the fees that she is assessed to pay
for the system while she is on parole. , .
State argues that the petition should be dismissed because
its challenge to her original sentence and conviction is
untimely, or, alternatively, she has failed to exhaust
available state court remedies.
Court observes that before federal habeas relief may be
granted, a prisoner must exhaust her remedies in state court.
28 U.S.C. § 2254(b)(1). A habeas petitioner has failed
to meet the exhaustion requirement “if [she] has the
right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. §
2254(c). Respondent argues that Golden's federal habeas
petition is premature because her state court remedies have
not been properly exhausted.
relevant portions of ' 2254 provide as follows:
(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not ...