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Golden v. King

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

May 16, 2018

BRENDA ANN GOLDEN PETITIONER
v.
RON KING, Superintendent of Central Mississippi Correctional Facility RESPONDENT

          REPORT AND RECOMMENDATION

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Respondent Superintendent Ron King's Motion to Dismiss [13], to which Petitioner Brenda Ann Golden has responded [14], and Respondent King has filed a rebuttal [15]. 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.

         FACTS AND PROCEDURAL HISTORY

         In this 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].

         Initially, 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.

         The 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.

         Thereafter, Golden filed a Motion for Post-Conviction Collateral Relief on May 25, 2017, in the Circuit Court of Lauderdale County. [1] 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.

         On 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.

         On August 31, 2017, Golden signed her initial petition for habeas corpus relief, filed in this Court pursuant to 28 U.S.C. § 2254. [1] at 15. The Court received her amended petition on September 22, 2017. [4]. 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. [11], [12].

         The 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.

         DISCUSSION

         The 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.

         The 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 ...

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