United States District Court, N.D. Mississippi, Greenville Division
ORDER ADOPTING REPORT AND RECOMMENDATION
M. BROWN, UNITED STATES DISTRICT JUDGE
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.
and Procedural History
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,  with the sentences to run consecutively.
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.
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.”
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.
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.
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.
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).
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 ...