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Brown v. Outlaw

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

February 12, 2019

NICHOLAS D. BROWN PETITIONER
v.
TIMOTHY OUTLAW RESPONDENT

          REPORT AND RECOMMENDATION

          JOHN C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.

         BEFORE THE COURT is the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed by Petitioner Nicholas D. Brown. Respondent, Warden Timothy Outlaw, has filed a Motion to Dismiss (ECF No. 8), and twice supplemented (ECF Nos. 15, 19) the Motion to Dismiss to provide updates regarding Brown's postconviction proceedings in state court. Brown ultimately received postconviction relief in May 2018. Based upon information provided by the Mississippi Department of Corrections (MDOC), Brown was released from incarceration around July 30, 2018, and is on GPS monitoring in Simpson County, Mississippi.[1] Brown has not updated his address, and he has not responded to Respondent's most recent supplement to the Motion to Dismiss, which was filed on December 14, 2018.[2] Brown has not filed anything with the Court in this case since July 5, 2018, prior to his release. Having considered the submissions of the parties, the record, and relevant legal authority, the undersigned United States Magistrate Judge concludes that all claims in the Petition should be dismissed with prejudice. The portion of Brown's Petition challenging his conviction and sentence for possession of codeine is moot. All claims are procedurally defaulted and barred from federal review.

         BACKGROUND

         In April 2013, Brown was indicted by a Simpson County grand jury on two counts of possession of a controlled substance. Brown v. State of Mississippi, No. 2016-CP-00600-COA, 2018 WL 5603694 (Miss. Ct. App. Feb. 13, 2018), reh'g denied (Oct. 30, 2018). In Count 1, he was charged with possession of approximately 12.1 milliliters of codeine. In Count II, he was charged with possession of approximately 1.2 grams of cocaine. In March 2014, Brown pleaded guilty to only Count II, possession of 1.2 grams of cocaine. At his plea hearing, Brown requested to enter a drug-court program. The trial court withheld acceptance of Brown's guilty plea and placed Brown on nonadjudicated probation. The trial court also accepted Brown's request to enter a drug-court program.

         In 2015, Brown was found to have violated the terms and conditions of the drug-court program. The trial court found that Brown's nonadjudicated status should be revoked and accepted his guilty plea. Brown was mistakenly sentenced on both Counts 1 and 2, when he did not plead guilty to Count 1. Brown was sentenced to sixteen years on Count 1 and eight years on Count II, with the sentences to run consecutively.

         In October 2015, Brown filed at least four motions for postconviction relief (PCR motion) in the circuit court, alleging that his plea was involuntary, his counsel was ineffective, and the search warrant was invalid. Brown also filed petitions under 28 U.S.C. § 2254 in this Court. In February 2016, Brown filed a § 2254 petition in Brown v. Stanciel, Cause Number 3:16-cv-217-HTW-LRA (S.D.Miss.), which was dismissed for failure to exhaust state court remedies. In September 2016, Brown filed a 2254 petition in Brown v. Mississippi, Cause Number 3:16-cv-697-CWR-LRA (S.D.Miss.), which was dismissed for failure to exhaust state court remedies.

         In November 2016, the circuit court denied Brown's PCR motions. Brown timely appealed. In January 2017, Brown filed a third § 2254 petition in this Court, Brown v. Lee, Cause Number 3:17-cv-49-TSL-JCG (S.D.Miss.), which was dismissed as duplicative of Cause Number 3:16-cv-697-CWR-RHW (S.D.Miss.). In June 2017, Brown filed a fourth § 2254 petition in Brown v. State of Mississippi, Cause Number 3:17-cv-460-HSO-FKB (S.D.Miss.), which was dismissed for failure to prosecute. Brown's fifth § 2254 petition, filed January 12, 2018, is the instant Petition. In it, Brown urges that his plea was involuntary, his trial counsel was ineffective, the search warrant was invalid, and there was no factual basis for his plea.

         On February 13, 2018, the Court of Appeals of the State of Mississippi handed down its original decision affirming the denial of Brown's PCR motions in Cause Number 2015-291-1. See Brown v. Mississippi, No. 2016-CP-00600-COA, 2018 WL 833097 (Miss. Ct. App. Feb. 13, 2017). Brown timely filed for rehearing. While Brown's rehearing motion was pending, the circuit court entered an order on March 14, 2018, in Brown's criminal cause, 2013-90-K-1, to correct the mistake in Brown's March 2014 order of conviction. The May 2018 circuit court order was also filed in Brown's civil PCR cause, 2015-291-1. The May 2018 order states that the portion of the order of conviction stating that Brown pleaded guilty to possession of codeine was a mistake. The May 2018 order corrects the order of conviction to reflect that Brown only pleaded guilty to possession of cocaine. The May 2018 order corrects the order revoking Brown's nonadjudicated status to strike the sixteen-year sentence for possession of codeine. The May 2018 order provides that all other portions of the order of conviction and revocation order remain in effect.

         On October 30, 2018, based upon the circuit court's May 14, 2018, order, the Court of Appeals withdrew its initial opinion and entered a superseding opinion, which denied in part and dismissed as moot in part Brown's motion for rehearing. See Brown v. State of Mississippi, No. 2016-CP-00600-COA, 2018 WL 5603694 (Miss. Ct. App. Feb. 13, 2018), reh'g denied (Oct. 30, 2018). Brown did not seek certiorari review from the Mississippi Supreme Court of the Court of Appeals' decision.

         Brown appealed the circuit court's order in his criminal case that corrected the order of conviction and struck the sixteen-year sentence for possession of codeine. Brown filed that appeal on July 20, 2018, about ten days before his release. The appeal remains pending in Court of Appeals Cause Number 2018-TS-1046-COA, although Brown's motion for leave to appeal in forma pauperis was denied in December 2018, and he has not paid the filing fee. It appears that Brown has abandoned both this action and the state court appeal he filed on July 20, 2018.

         DISCUSSION

         A. Standard of Review

         Exhaustion of state remedies is a mandatory prerequisite to federal habeas relief under 28 U.S.C. § 2254:

(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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