United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING
RESPONDENTS' MOTION TO DISMISS
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Report and Recommendation
entered by United States Magistrate Judge Linda R. Anderson
in which she recommends that the Court should grant the 
Motion to Dismiss filed by the respondents, State of
Mississippi, Superintendent Jacquelyn Banks, and Warden
Marshal Turner. The petitioner Frederick Earl Buckhalter
filed an  Objection to the Report and Recommendation, and
the respondents filed a  Response to the Objection.
Buckhalter also filed a  Reply. After reviewing the
submissions of the parties, the record in this matter, and
the applicable law, the Court finds that the Report and
Recommendation should be adopted as the opinion of this Court
and the respondents' Motion to Dismiss should be granted.
August 2, 2010, Buckhalter pled guilty to unlawful possession
of a firearm or weapon, and the Circuit Court of Harrison
County, Mississippi sentenced him to five years imprisonment.
The court suspended the sentence for two years of reporting
post-release supervision and non-reporting post-release
supervision for the remaining years. On November 25, 2013,
the court revoked Buckhalter's post-release supervision
and sentenced him to his original five-year term, with credit
for time served. On June 29, 2015, Buckhalter was arrested
for possession of cocaine with intent to transfer or
distribute. The indictment was subsequently amended to allege
that Buckhalter was a habitual offender and to assert a
charge of simple possession. Therefore, the court once again
revoked Buckhalter's post-release supervision for the
2010 firearm charge and sentenced him to his original
five-year term, with credit for time served as to the firearm
charge. The court found that Buckhalter should “be
given credit for any and all time served as to this
charge.” (Resp't Mot., Ex. E, ECF No. 15-5).
Buckhalter pled guilty to the charge of possession of a
controlled substance, and the court sentenced him as a
habitual offender to serve three years imprisonment
consecutive to his five-year sentence for the firearm charge.
filed complaints with the Mississippi Department of
Corrections' Administrative Remedy Program in which he
challenged the MDOC's computation of his term of
imprisonment. MDOC granted Buckhalter an additional
fifty-five days of credit for time served. Buckhalter
appealed, seeking additional credit, but MDOC rejected his
appeal. Buckhalter then filed motions that concerned the
computation of his sentence in the Circuit Court of Harrison
County. On July 3, 2017, Buckhalter filed his habeas petition
challenging the computation of his sentence. Buckhalter filed
a Petition for Writ of Mandamus, asking the Mississippi
Supreme Court to compel the Circuit Court of Harrison County
to rule on his Motions. The Supreme Court dismissed the
Petition as moot on April 4, 2018, because the Circuit Court
of Harrison County denied Buckhalter's motions on April
3, 2018. Buckhalter filed a Notice of Appeal of the Circuit
Court's decisions on April 25, 2018. The appeal remains
31, 2018, Judge Anderson issued a Report and Recommendation
proposing that the Court should dismiss Buckhalter's
habeas petition without prejudice for failure to exhaust
available state court remedies. Buckhalter objects to Judge
courts are prevented from granting habeas relief unless the
petitioner has exhausted available state court remedies. 28
U.S.C. § 2254(b)(1). "Exhaustion requires that a
petitioner first present the substance of his federal claims
to the highest state court either through direct appeal or by
state collateral review procedures." Hatten v.
Quarterman, 570 F.3d 595, 605 (5th Cir. 2009). In his
objection, Buckhalter claims that, in order to exhaust
available state remedies, he was required to present his
claims to the state courts and was not required to wait for
the state courts to adjudicate his claims. However,
exhaustion requires “giving the State the opportunity
to pass upon and correct alleged violations of its
prisoners' federal rights.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004). Since the Mississippi
appellate courts have not had an opportunity to rule on
Buckhalter's April 25, 2018 Notice of Appeal, Buckhalter
has not exhausted his available state court remedies.
also asks the Court to hold his habeas petition in abeyance
while he exhausts state court remedies. A stay is only
appropriate when there is good cause for the petitioner's
failure to exhaust his claims in state court. Rhines v.
Weber, 544 U.S. 269, 277 (2005). Since Buckhalter failed
to demonstrate good cause for failing to exhaust state court
remedies, he is not entitled to a stay of his petition.
IS, THEREFORE, ORDERED AND ADJUDGED that the 
Report and Recommendation entered by United States Magistrate
Judge Linda R. Anderson is ADOPTED as the
opinion of this Court.
IS, FURTHER, ORDERED AND ADJUDGED that  Motion
to Dismiss filed by the respondents, State of Mississippi,
Superintendent Jacquelyn Banks, and Warden Marshal Turner is
GRANTED. Buckhalter's petition ...