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Hays v. Hall

United States District Court, N.D. Mississippi, Greenville Division

September 20, 2018

HOWARD HAYS PETITIONER
v.
PELICIA HALL, and ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI RESPONDENTS

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of United States Magistrate Judge Jane M. Virden recommending that the respondents' motion to dismiss be granted. Doc. #11.

         I

         Factual and Procedural History

         On October 12, 2015, in the Circuit Court of Leflore County, Mississippi, Howard Hays pled guilty to one count of burglary, one count of grand larceny, and being a habitual offender under § 99-19-81 of the Mississippi Code. Doc. #8-1 at 1. The same day, Hays was sentenced to seven years for the burglary charge and five years for the grand larceny charge, [1] with the sentences to run consecutively. Id.

         On March 11, 2016, Hays filed a pro se motion for post-conviction relief (“PCR”) which alleged numerous constitutional violations in the proceedings related to the burglary and grand larceny charges. Doc. #8-2. The Circuit Court of Leflore County denied Hays' PCR motion on July 18, 2017. Doc. #8-4. Hays did not appeal this order within the time allowed. However, on or about August 7, 2017, he filed this habeas action challenging the same convictions. Doc. #1.

         Approximately a month after initiating this habeas action, Hays filed a second PCR action in the Leflore County Circuit Court. Doc. #14-3. Additionally, on October 10, 2017, Hays filed a “Notice of Appeal” in the Leflore County Circuit Court. Doc. #8-8 at 1. The notice, which includes the case number for Hays' first PCR action, seeks leave “to file [a] brief in the Supreme Court of Mississippi” and asks that “the Circuit Clerk … forward all documents … to the Mississippi Supreme Court.” Id.

         On December 11, 2017, the respondents, pointing to Hays' failure to appeal the July 18, 2017, denial of his PCR motion, moved to dismiss Hays' habeas petition as procedurally defaulted or, in the alternative, as non-exhausted. Doc. #8. In response, Hays argued that the Court should overlook his “procedural mistake” because of his “lack of knowledge of the law” and because he “is aggrieved by the decision of the Leflore County Court.” Doc. #10 at 1.

         On February 12, 2018, the Circuit Court dismissed Hays' second PCR action as an improper successive petition. Doc. #14-4. Hays appealed this dismissal on or about March 5, 2018. Doc. #14-6.

         On April 2, 2018, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation recommending that Hays' petition be dismissed as procedurally defaulted. Doc. #11. Hays filed objections to the Report and Recommendation, Doc. #13, and the respondents filed a response to the objections, Doc. #14.

         II

         Analysis

         Where objections to a report and recommendation have been filed, a court must conduct a “de novo review of those portions of the … report and recommendation to which the [parties] specifically raised objections. With respect to those portions of the report and recommendation to which no objections were raised, the Court need only satisfy itself that there is no plain error on the face of the record.” Gauthier v. Union Pac. R.R. Co., 644 F.Supp.2d 824, 828 (E.D. Tex. 2009) (citing Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)) (internal citations omitted).

         “Procedural default occurs when a prisoner fails to exhaust available state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Williams v. Thaler, 602 F.3d 291, 305 (5th Cir. 2010) (internal alterations and quotation marks omitted). To overcome a state procedural default, a petitioner must show “cause for the default and … actual prejudice as a result of the alleged violation of federal law, ” or “that ...


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