United States District Court, S.D. Mississippi, Eastern Division
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
AND DISMISSING CASE WITHOUT PREJUDICE, ETC.
STARRETT, UNITED STATES DISTRICT JUDGE.
cause is before the Court on Petition of Jonathan Edwards
filed pursuant to 28 U.S.C. § 2254 , Respondent
Jacquelyn Banks' Motion to Dismiss for Failure to Exhaust
, the Report and Recommendation  filed by Magistrate
Judge Robert H. Walker, Objection thereto  filed by
Jonathan Edwards and Response in Opposition  to Objection
filed by Respondent. The Court has considered the above
described pleadings and the record and exhibits herein and
finds as follows to wit:
FACTS AND PROCEDURAL HISTORY
January 18, 2017, Jonathon Edwards pled guilty in Marion
County Circuit Court to a charge of Burglary of a Dwelling
§97-17-32, Habitual Offender §99-19-81. On January
27, 2017 Edwards was sentenced, as a habitual offender, to
serve 25 years in custody of the Mississippi Department of
Corrections, the sentence to run concurrently with the
25-year sentence imposed on his guilty plea to a separate
charge of burglary of a dwelling in Marion County Cause
number K15-223. Edwards was further ordered to pay a fine of
$1000, an assessment of $1, 000 to the Public Defender's
Office and all costs of court. [11-1], [11-2]
filed the present habeas petition on December 19, 2017,
claiming that (1) his guilty plea was neither knowingly nor
voluntarily entered; (2) investigating officers submitted
false information; (3) he was illegally charged as a habitual
offender under Mississippi Code §99-19-81; and (4) he
received ineffective assistance of counsel. Edwards'
acknowledges that on September 8, 2017, he filed a
Post-Conviction Relief motion, and his complaint repeatedly
states that motion is still pending in the Marion County
Circuit Court. [1, pp. 3, 5-7, 9-11]. Since his filing, the
Marion County Circuit Courtdenied his post conviction
petition. Respondent urges the petition should be dismissed
because Edwards failed to exhaust state court remedies prior
to filing this action.
STANDARD OF REVIEW
party objects to a Report and Recommendation this Court is
required to “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). See also Longmire v. Gust,
921 F.2d 620, 623 (5th Cir. 1991) (Party is
“entitled to a de novo review by an Article
III Judge as to those issues to which an objection is
made.”) Such review means that this Court will examine
the entire record and will make an independent assessment of
the law. The Court is not required, however, to reiterate the
findings and conclusions of the Magistrate Judge.
Koetting v. Thompson, 995 F.2d 37, 40
(5th Cir. 1993) nor need it consider objections
that are frivolous, conclusive or general in nature.
Battle v. United States Parole Commission, 834 F.2d
419, 421 (5th Cir. 1997). No. factual objection is
raised when a petitioner merely reurges arguments contained
in the original petition. Edmond v. Collins, 8 F.3d
290, 293 (5th Cir. 1993).
PETITIONER'S OBJECTIONS AND THE LAW AND ANALYSIS
basis for the Recommendation of Dismissal is that Petitioner
has not exhausted his State court remedies pursuant to 28
U.S.C. § 2254, as amended by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (AEDPA). In his pleadings
Petitioner acknowledges that he has not exhausted his claim
before the Courts of the State of Mississippi. Indeed his
appeal in the underlying State court case is currently
pending before the Mississippi Supreme Court (See Document
14-1) In his Objection Petitioner files the documents that
were filed in his appeal to the Mississippi Supreme Court
(See Document 14-1 through 14-6). The law is clear that only
after exhausting claims in State Court is a Petitioner
eligible to file for Federal habeas relief.
O'Sullivan v. Boerckel, 526 U.S. 838, 844,
(1999). Petitioner presents no valid argument as to why the
claim should not be dismissed other than the timing is too
short. However, his right to file a Federal habeas petition
is still viable if and when the Mississippi Supreme Court or
the Mississippi Court of Appeals denies his appeal. The one
year statute of limitations is tolled while a post-conviction
petition is pending in State court. Tolling is not an issue
because Petitioner's habeas petition was timely filed.
The Court is obligated to dismiss this Petition but will do
so without prejudice.
required by 28 U.S.C. § 636(b)(1) this Court has
conducted an independent review of the entire record and a
de novo review of the matters raised by the
objections. For the reasons set forth above, this Court
concludes that Edward's objections lack merit and should
be overruled. The Court further concludes that the proposed
Report and Recommendation is an accurate statement of the
facts and the correct analysis of the law in all regards.
Therefore, the Court accepts, approves and adopts the
Magistrate Judges's factual findings and legal
conclusions contained in the Report and Recommendation.
Accordingly, it is ordered that the United States Magistrate
Judge Robert H. Walker's Report ...